Kamar Sultana Farid Ahmed Shaikh V. Union of India

SCA/10893/2019

AI Insights

The case revolves around Kamar Sultana Farid Ahmed Shaikh, the widow of the original allottee of a Tea and Refreshment Stall at Vadodara Railway Station, who challenged the e-tender process initiated by the Union of India. The petitioner argued that the stall should remain under the reserved category for minorities, as per the Catering Policy 2017, and contested the change to a general category, which allowed for an open tender. The court examined previous rulings, the applicability of the Catering Policies of 2010 and 2017, and the legal rights of the petitioner as a legal heir to contest the tender process.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 811906 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 29-07-2019
• Assessment Year: misc
• Other Referred Cases: Niranjanswarup Ratanlal Jain v. Western Railway
• Laws Referred To: Catering Policy 2010, Catering Policy 2017, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SIRAJ GORI
• Assessee Lawyers: NIRALI OZA
• Keywords: E-Tender; General category; Legal heir; Tea and Refreshment Stall; Reserved Category; Minority Reservation
• Section: 19(1)(g)

Judgement Text

"C/SCA/10893/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10893 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.M.THAKER and HONOURABLE MR.JUSTICE V.P. PATEL ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ================================================================ KAMAR SULTANA FARID AHMED SHAIKH Versus UNION OF INDIA ================================================================ Appearance: NIRALI Y OZA(8643) for the Petitioner(s) No. 1 MR SIRAJ R GORI(2298) for the Respondent(s) No. 1,2,3 NOTICE SERVED BY DS(5) for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER and HONOURABLE MR.JUSTICE V.P. PATEL Date : 29/07/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE V.P. PATEL) Page 1 of 31 C/SCA/10893/2019 JUDGMENT 1. This Petition is filed by the Petitioner - widow of the Original Allottee of Tea and Refreshment Stall against the Respondents seeking direction to quash and set aside the E-Tender No. C- 45/BRC/15/Gen/Women/19 published in Newspaper dated -03- 2019. 2. Reliefs claimed by the Petitioner : The Petitioner has claimed the following relief in the Petition at paragraph 7(a) and 7(b): “7(a) This Hon'ble Court may be pleased to issue any appropriate writ, order or direction to quash and set aside the impugned e- tender No. C-45/BRC/15/Gen/Women/19 by way of which the respondents have changer the nature of the stall of the petitioner from that of the reserved category to general category and have invited bids on the same and be further pleased to restrain the respondents from displacing the petitioner from her present existing stall at Platform No.2 and 3 between Column 12/13 at Vadodara Railway Station. 7(b) Pending hearing and final disposal of this writ petition, the Honourable Court may be pleased to direct that status quo be maintained with respect to the stall of the petitioner at Platform No.2 and 3 between Column 12/13 at Vadodara Railway Station in consonance and compliance of the roders passed by the Hon'ble Supreme Court and other Hon'ble Courts as well as order dated 01.05.2019 passed by the Director (T&C), Railway Board till such time that the Hon'ble Supreme Court does not decide the appeal being Civil Appeal No. 7513 of 2005 and analogous case referred to the Constitutional Bench; 2.1 The Draft Amendment dated 22.6.2019, filed by the Petitioner, to amend the petition is granted by this Court vide order dated 26.6.2019. By way of Draft Amendment, the Petitioner has carried out the amendment and prayed for the following reliefs at paragraph 7(aa) and 7(bb): “7(aa) This Hon'ble Court may be pleased to issue any appropriate writ, order or direction to quash and set aside the Page 2 of 31 C/SCA/10893/2019 JUDGMENT impugned notice dated 21.6.2019 issued by the Respondent no.3 by way of which the Respondents have instructed the Petitioner to vacate the stall held by her within one week and further be pleased to restrain the respondents from displacing the petitioner from her present existing stall at Platform No.2 and 3 bwtween Column 12/13 at Vadodara Railway Station. 7(bb) Pending hearing and final disposal of this writ petition, the Honourable Court may be pleased to stay the operation, implementation and execution of the impugned notice dated 21.6.2019 and further be pleased to direct that status quo be maintained with respect to the stall of the petitioner at Platform No.2 and 3 between Column 12/13 at Vadodara Railway Station in consonance and compliance of the orders passed by the Hon'ble Supreme Court other Hon'ble Courts as well as order dated 01.05.2019 passed by the Director (T&C), Railway Board till such time that the Hon'ble Supreme Court does not decide the appeal being Civil Appeal No. 7513 of 2005 and analogous case referred to the Constitutional Bench.” 3. Case of the Petitioner : 3.1 The husband of the Petitioner was allotted a Tea and Light Refreshment Stall at Platform no. 2/3 between Column no. 12/13 at Vadodara Railway Station (A1 Category). That the husband of the Petitioner was running the said stall for over 23 years since 25.6.1993 and after his death on 15.9.2014, the Petitioner has been running the said stall. 3.2 It is stated that the Petitioner had previously preferred Special Civil Application No. 3834 of 2015 praying for quashing the communication dated 11.2.2015 dispossessing her from the stall and this Hon'ble Court vide order dated 28.9.2015 directed the Respondents to permit the Petitioner to run the stall if the Petitioner gives an undertaking to adhere to the same conditions as laid down by the Hon'ble Division Bench of this Court in Niranjanswarup Page 3 of 31 C/SCA/10893/2019 JUDGMENT Ratanlal Jain v. Western Railway [Special Civil Application No. 11563 of 2013] until a new party is given the contract pursuant to the tender process that may be undertaken by the Respondent Authorities. Thus, the petitioner was obliged to submit an undertaking and the petitioner was allowed to continue till new contract is granted. 3.3 It is the case of the Petitioner that she gave an undertaking on 4.11.2015 and the license to run the stall was transferred in her name. 3.4 The Petitioner has preferred LPA No. 586 of 2016 along with CA No. 5766 of 2016 for stay / status quo against the order dated 28.9.2015 passed by the learned Single Judge in Special Civil Application No. 3834 of 2015. 3.5 The Petitioner submitted that during the course of hearing of LPA No. 586 of 2016, the Petitioner sought liberty to move fresh application before the authority to transfer. 3.6 The permission is granted by the learned Single Judge vide order dated 28.9.2015. The license of the Petitioner is continued and she is paying license fees regularly. 3.7 That in the meantime, upon various Division Railway Managers issued bid notice and invited sealed bids. The same were challenged before different jurisdictions. In one of the case the Hon'ble Andhra Pradesh High Court has held that the existing Page 4 of 31 C/SCA/10893/2019 JUDGMENT licensees were entitled to renewal of licenses subject to their satisfying the conditions stipulated in the Catering Policy 2010. 3.8 That the said order was carried in appeal before the Hon'ble Supreme Court by way of SLP (C) No. 9921-23 of 2014. The Petitioner has relied upon paragraph 33 and 34 of the judgment and order passed on 29.1.2016 by the Hon'ble Supreme Court. It is the case of the Petitioner that as per paragraph 34 of the order dated 29.1.2016 passed by Hon'ble Apex Court in SLP (C) No. 9921-23 of 2014, the Petitioner is entitled to renew her license. 3.9 It is further stated that the Catering Policy 2010 was holding the field and thereafter new Catering Policy of 2017 was implemented wherein it is provided in Clause 10 as under: “The Ministry of Railways has informed that, The issue of reservations is at present sub-judice in the Hon'ble Supreme Court. Any allotment / extension in the case of reservations will be subject to the final order of the Hon'ble Supreme Court in Civil Appeal No. 7513 of 2005 and analogous case referred to the Constitutional Bench.” 3.10 It is the case of the Petitioner that the Catering Policy states reservation in case of minor units in A-1, A, B and C categories of stations shall be inter alia 3% in case of Minorities (Muslims, Christians, Sikhs, Buddhists, Zoroastrians, i.e. Parsis and Jains). It is further submitted that the Petitioner falls under the reserved category and entitled to the benefit of reservation. 3.11 It is stated that the competent authorities have invited e- tender for allotment of stalls at Vadodara Railway Station. The action on part of the competent authority is illegal and arbitrary. Page 5 of 31 C/SCA/10893/2019 JUDGMENT Hence the petition is filed on the grounds stated in the memo of Petition. 4. Heard learned Advocate Ms. Nirali Y. Oza for Petitioner and learned Advocate Mr. Siraj R. Gori for Respondent Nos. 1 to 3. 5. Arguments on behalf of the Petitioner : 5.1 Learned Advocate for Petitioner submitted that the impugned e-tender and the action on part of the Respondents is bad, illegal and wholly untenable in the eye of law. That even otherwise, as per the Catering Policy of 2010 and Catering Policy of 2017, any allotment / extension in the case of reservations will be subject to the final order of the Hon'ble Supreme Court in Civil Appeal No. 7513 of 2005 and analogous case referred to the Constitutional Bench. That even the judgment of the Hon'ble Apex Court dated 29.1.2016 does not state that the judgment is applicable to licensees falling under the reserved category, more particularly, the licensees who are holding licenses in view of the final outcome of the Civil Appeal No. 7513 of 2005 which pertains to reserved category. 5.2 Learned Advocate for the Petitioner submitted that as per several decisions of the Hon'ble Apex Court and this Hon'ble Court, even if the petitioner is successful after participating in the tender in the general category, appointment / allotment of units to a candidate belonging to the reserved category in the general category and showing it as appointment / allotment made in the reserved category is impermissible by law. She further submitted that the Respondents ought to have appreciated that the matter is Page 6 of 31 C/SCA/10893/2019 JUDGMENT sub judice before the Hon'ble Supreme Court in Civil Appeal No. 7513 of 2005 and until final outcome thereof, the Respondents could not have initiated any action. 5.3 That even the standing committee of the Railways in the Catering Policy of 2017 has elaborated that though there is no constitutional provision for making reservations in matters other than services / appointment, in order to uplift socially and economically backward people of the society, Indian Railways has already made 25% reservation at A, B and C category of railway stations for allotment of minor static catering unit. This provision of reservation is a conscious and proactive decision of Ministry of Railways, which is in the general interest of the travelling public and society at large. She further submitted that the petitioner is a person whose means of livelihood depends on the running of this catering unit and therefore, any action of displacing her will be grossly violative of her Fundamental Rights guaranteed to her under Article 19(1)(g) of the Constitution. 5.4 Learned Advocate Petitioner submitted that most importantly, when the Catering Policy of 2017 itself clearly states in Clause 10 that “The issue of reservations is at present sub judice in the Hon'ble Supreme Court. Any allotment/extension in the case of reservations will be subject to the final order of the Hon'ble Supreme Court in Civil Appeal No. 7513 of 2005 and analogous case referred to the Constitutional Bench”, the respondents herein could not have acted beyond the scope of the Catering Policy and issued such e-tender and therefore dispossess the petitioner. This only goes on to show the power that the Page 7 of 31 C/SCA/10893/2019 JUDGMENT authorities / respondents herein are trying to assume unlawfully. 5.5 Learned Advocate for Petitioner submitted that as per the catering permission granted to the petitioner’s husband on 25.06.1993 and subsequently the petitioner on 04.11.2015 have both been granted only after duly verifying their minority status and after compliance of submission of minority certificate and FSSAI standards. That the action of the respondents in showing the petitioner’s stall as one belonging to the general category is only done with a view to malicioulsy dispossess the petitioner of her only source of income. She further submitted that the units of the Petitioner are alloted in the reserved category and the same do not attract the general category for which the bid is open. She further submitted that the petitioner is a widow who will lose her livelihood if the stalls are discontinued by the respondents. It is further submitted that the action of the respondents in discontinuing the stalls of the petitioner is arbitrary and non est in the eyes of law and that the Petitioner cannot be subject to the high handedness of the Respondents more particularly when this is her only means of livelihood. 5.6 That the Catering policy 2010 clearly states that special minor units will be allotted by inviting applications and draw of lots. I state that Paragraph 14.1.1 of the Catering Policy 2010 is wrongly relied upon by the Respondent no. 3 since the same pertains to major units and general minor units while the unit of the petitioner is a special minor unit falling in the reserved category, allotment of which is covered by Paragraph 14.2. Page 8 of 31 C/SCA/10893/2019 JUDGMENT 6. Submission on behalf of the Respondent: 6.1 Learned Advocate for the Respondent has argued that the present petition is thoroughly misconceived in law and facts, hence, on this count only this Hon'ble Court may be pleased to dismiss the petition at the threshold. The Petitioner has sought such other ancillary relief which does not deserve to be granted as the present petition is thoroughly misconceived in law and fact. 6.2 It is submitted that the respondents have to act as per the rule and policy framed by the Railway Board. The license to run the Catering Units allotted as per the agreement made between Catering Contractor and respondent. 6.3 It is argued that the stall was originally allotted to Late Shri F. G. Shaikh in year 1993 for 5 years which was renewed was renewed up to the year 2005. 6.4 There was no reservation applicable at the time of allotment. 6.5 That the original licensee Late Shri F. G. Shaikh expired on 15.09.14 and thereafter the present petitioner Smt. Kamar Sultana Farid Ahmed Shaikh, W/o late Shri la G. Shaikh filed an application on 05.11.2014 to transfer the license in the name of legal heir in case of death of original licensee. 6.6 It is stated that the Railway Railway administration vide letter no. C45/14/278 dtd. 11.02.2015 advised the petitioner that license was last renewed upto 31.10. 2005 and since there is no unexpired period of the license, hence, the request for transfer of Page 9 of 31 C/SCA/10893/2019 JUDGMENT licensee in the name of legal heirs cannot be considered as per exact policy guidelines. 6.7 More over as per clause 48 of the agreement the license stands ceased. 6.8 Hence, the petitioner is not authorised to operate the stall. That the decision was taken as per clause 21 of Catering Policy- 2010. 6.9 The present petitioner has challenged the decision of Railway Authority communicated vide letter dtd. 11.02.2015 by way of filing SCA No.3834 of 2015 before Hon’ble High Court of Gujarat. The petition came to be disposed off vide order dt 28.09.2015 where in this Hon'ble Court has ordered to allow the petitioner to run the stall until new party is given contract pursuant to the tender process. 6.10 That this Hon'ble court has directed the petitioner to file an undertaking vide para 24 of the said judgement and accordingly the present petitioner has filed an undertaking on 02.11.2015 in the High Court of Gujarat. As per the order petitioner was permitted to run the stall until new party is given contract pursuant to tender vide this office letter dtd. 05.11.2015. 6.11 The units run by existing Licensees are entitled for status quo advised by Railway Board vide letter no. 2016/TG-III/600/01 dated 21.05.2019. Page 10 of 31 C/SCA/10893/2019 JUDGMENT 6.12 The units where licensee is expired are not valid contractor, hence, they are not entitled for status quo advised by Railway Board vide letter no. 2016/TG-III/600/01 dated 21. 05. 2019 unless the license is transferred by administration. 6.13 It is stated that the Original licensee Late Shri F. G. Shaikh expired on 15.09.2014. 6.14 That the Petitioner Smt. Kamar Sultana Farid Ahmed Shaikh, W/o late Shri F. G. Shaikh had filed an application dtd. 05.11.2014 to transfer the license in the name of legal heir in case of death of original licensee. 6.15 Railway administration has vide letter no. C45/14/278 dtd. 11.02.2015 advised the petitioner that license was last renewed upto 31.10.2005 and since, there is no unexpired period of the license, hence the request for transfer of license in the name of legal heirs cannot be considered as per extant policy guidelines. 6.16 Moreover as per clause 48 of the agreement the license stands ceased. Hence, not authorised to operate the stall. 6.17 It is submitted that SCA No. 3834 of 2015 came to be disposed off by this Hon’ble High Court of Gujarat vide order dtd. 28.09.2015 whereby the petitioner was allowed to run the stall until new party is given contract pursuant to the tender process. That this Hon’ble court has also directed the petitioner to file an undertaking vide para 24 of the said judgement and accordingly the present petitioner has filed an undertaking on 02.11.2015 in the High Court Page 11 of 31 C/SCA/10893/2019 JUDGMENT of Gujarat that as and when the successful bidder is ready and after receiving notice I will vacate the premises and handover the peaceful possession to railway within a week. Accordingly as per the order of Hon’ble court, petitioner was permitted to run the stall until new party is given contract pursuant to tender hence the petitioner was permitted by Hon’ble court till new successful bidder is finding by railway through tender. 6.18 It is further submitted that as per Hon’ble High court’s order dtd. 28.09.2015 in SCA No. 3834 of 2015, and undertaking dtd. 02.11.2015, the present petitioner Smt. Kamar Sultana Farid Ahmed Shaikh vide this office letter No. C45/14/278 dtd. 21.06.2019 has been instructed the petitioner to vacate the stall and premises and hand over peacefully to Station Director-Vadodara within seven days. 7. Right of the Petitioner on the ground of allotment to her husband: 7.1 The petitioner has pleaded that the husband of the Petitioner was allotted a Tea & Refreshment Stall at Platform No. 2/3 between Column No. 12 and 13 at Vadodara Railway Station [A1 Category] under the Reserved Category (Minorities). That the husband of the petitioner was running the said stall for over 23 years since 25.6.1993. The husband of the petitioner was expired on 15.9.2014 and thereafter petitioner was running the Stall. That the petitioner has the only source of income and livelihood. That she is belonging to minority community. Thus she is entitled to hold possession and renewal of license for said Tea and Refreshment stall. Page 12 of 31 C/SCA/10893/2019 JUDGMENT 7.2 The Respondent has submitted that the stall was originally allotted to late Shri F.G.Shaikh in 1993 for 5 years which was renewed up to the year 2005. That there was no reservation applicable at the time of allotment. Original allottee Shri F.G.Shaikh expired on 15.9.2014 and thereafter the present petitioner had filed application on 5.11.2014 to transfer the license in the name of the legal heirs in case of death of the original licensee. 7.3 It is further submitted that the Railway administration has vide letter No. C-45 / 14 / 278 dated 11.2.2015 advised the petitioner that the license was renewed up to 31.10.2005 and since there is no unexpired period of license, hence the request of transfer of license in the name of legal heirs cannot be considered and as per the extent policy and guidelines and Clause 48 of the Agreement, the license stand ceased. The said decision was taken as per Clause 21 of the Catering Policy 2010. 8. The petitioner has produced copy of order No. C-45/3/6 dated 23.6.1993 at page No. 23 of this petition issued by the Respondent. On perusing the said allotment order, nowhere in the order, it is stated that the allotment of stall in favour of Shri Farid Ahmed Gulam Mohamad Shaikh is made on ground of minority. 8.1 The petitioner has also produced copy of renewal order No. C/45/14/278 dated 24.3.2004 in favour of Shri Farid Ahmad Mohd. Gulam Shaikh at page 24 of this petition. In this order also there is no single word as to the allotment has been made on the minority basis. Page 13 of 31 C/SCA/10893/2019 JUDGMENT 9. The petitioner had challenged the decision of the Railway Authority communicated vide letter dated 11.2.2015 by way of filing Special Application No. 3834 of 2015 before this court. The petitioner has asked the relief in the said petition as under: “(A) YOUR LORDSHIPS be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction, quashing and setting aside the impugned action dtd. 11.12.2014 of the respondent authority in orally directing the petitioner to close the refreshment stall running in the name of F G Shaikh between platform no. 2 and 3 at Vadodara Railway Station, as being illegal, arbitrary, discriminatory, unreasonable, unjustified, in gross violation of principles of natural justice, contrary to the policy as also violative of Art. 14 and 19(1)(g) of the Constitution of India; (B) YOUR LORDSHIPS be pleased to stay the impugned action of the respondent authority and temporarily permit the petitioner to do the business at the refreshment stall, in the name of F.G.Shaikh between Platform no. 2 - 3 at Vadodara Railway Station, upon payment of requisite license fees, pending the admission, hearing and final disposal of this petition ; (C) YOUR LORDSHIPS‘ be pleased to direct respondent no. 1 to consider the application of the petitioner for transferring the license of the refreshment stall in favour of the petitioner, being a spouse / nominee / heirs or original licensee, in accordance with the Catering policy 2010 of the Government of India, within such stipulated time as may be deem fit by this Hon'ble Court in the interest of justice and equity; 9.1 This Court vide order dated 28.9.2015 disposed of the said petition by making the observations as under: “Having come to the conclusion that the petitioner has no right to insist for transfer of licence issued originally to her deceased husband and its renewal, and having found that the licence was renewed for the last time upto 31.10.2005, the petitioner is not entitled to any of the reliefs claimed for in the present petition. Page 14 of 31 C/SCA/10893/2019 JUDGMENT Decision taken by the respondent authorities dated 11.02.2015 is legal and proper. However, considering the judgment of Division Bench of this Court in the case of Niranjanswarup Ratanlal Jain (supra) even while not entertaining the present petition on merits it is provided that if the petitioner gives a similar undertaking to adhere to the same conditions as provided in the case of Niranjanswarup Ratanlal Jain (supra) the petitioner may be allowed to continue to run the stall in question until new party is given contract pursuant to the tender process that may be undertaken by the respondent authorities , as provided by Division Bench of this Court in the aforesaid Paragraph Nos.89 of the said judgment. Respondent authorities shall permit the petitioner to run the stall, for which originally licence was given in favour of deceased husband of the petitioner, on the petitioner filing undertaking as provided in the aforesaid Paragraph No.8 of the said judgment. It is further clarified that in case of any breach of such undertaking by the petitioner, as provided in the aforesaid Paragraph No.8 of the said judgment, and the petitioner fails to vacate the stall/premise as per the undertaking given before this Court, it would be open for the respondent authorities to get the premise/stall vacated with help of the police force and that too at the cost of the petitioner .” 10.The petitioner filed an undertaking dated 2.11.2015 wherein it is stated that; “2. I state that as per the order passed by the Hon'ble High Court of Gujarat vide Dtd. 28.09.2015, this Hon'ble Court has directed the respondent authorities not to vacate the possession till the successful bidder is not ready to operate. It is also observed that when the successful bidder is ready, the respondent authorities shall give me one week notice to vacate the place. 3. I hereby undertake that as and when the successful bidder is ready and after receiving the notice, I will vacate the premises and hand over the peaceful possession to the respondent authority within a week.” 11.In pursuance of the undertaking given by the petitioner, the Respondent has made order order dated 4/5.11.2015 which reads as under: Page 15 of 31 C/SCA/10893/2019 JUDGMENT “In reference to the order passed by Hon'ble High Court of Gujarat on 28/09/2015 in SCA No. 3834 of 2015, application submitted by you on 08/10/2015 and Xerox copy of undertaking dated 02/ 11/2015 given in the High Court of Gujarat, you are allowed to continue to run the stall in question (Tea & Light Refreshment stall at platform No. 2/3, between column No. 12-13 at Vadodara Railway Station) for which originally license was given in favour of deceased husband (F. G. Shaikh) of the petitioner until the new party is given contract pursuant to the tender process that may be undertaken by the respondent Railway authorities. You shall not create any right or equity on account of this continuation of running the stall until new party is given contract pursuant to the tender. You shall remove all your belonging and vacate the ’premises of the stall Within one week from the intimation so given by Railway Administration. It is further clarified that in case of any breach of such undertaking by you as provided in the said judgement and if you fails to vacate the stall / premises as per the undertaking given before the court, it Would be open for the respondent Railway ' authorities to get the premises / stall vacated With help of the police force and that too at your cost.” 12.Thereafter the petitioner has preferred Letters Patent Appeal No. 586 of 2016 against the order dated 28.9.2015 passed by the learned Single Judge in Special Civil Application No. 3834 of 2015, wherein the petitioner has prayed as under: “9(B) Your Lordships be pleased to quash and set aside the impugned order dtd. 28.9.2015, passed by the Hon'ble Single Judge in Special Civil Application No. 3834 of 2015, so far as holding that appellant cannot claim transfer and renewal of license under Catering Policy 2010, as being illegal, unjustified, unreasonable, contrary to the decision of the Hon'ble Apex Court as also violative of principles of natural justice in the interest of justice and equality;” 13.At the time of hearing of LPA the petitioner has filed affidavit Page 16 of 31 C/SCA/10893/2019 JUDGMENT purshis on 17.12.2017 wherein she has stated as under: “3. I say and submit that meanwhile, respondent Government of India enacted Catering Policy 2017, wherein also transfer of license is contemplated. Therefore, as on date Catering Policy 2017 is in force, therefore, appellant seeks liberty to make a fresh application for transfer of license under Catering Policy 2017, which may be decided by the respondent authority in accordance with the prevailing policy. 4. It is submitted that so far as direction of the Hon'ble Single Judge with regard to permission to run the snack stall upon undertaking being submitted by the applicant to the respondent authority subject to certain conditions, may be continued as directed by the Hon'ble Single Judge. That the appellant is regularly making payment of the periodical license fee as when required by the respondent Railway Authority.” 14.This court has passed the order dated 9.2.2018 in the LPA No. 586 of 2016 which came to be dismissed as not pressed. The order reads as under: “The affidavit-pursish filed by the appellant is placed on record. It is submitted that after filing of the Special Civil Application, there is a change in the policy. The appellant herein intends to apply as per the new policy. If such application is made, it is open to the authority to consider the same in accordance with the policy. As the appellant is not pressing the appeal for adjudicating it on merits, the present Letters Patent Appeal is dismissed as not pressed without going into the merits of the matter. Consequently, Civil Application also stands disposed of.” 15.The petitioner also filed Special Civil Application No. 7052 of 2019 on 5.4.2019 wherein she has prayed for the following reliefs: “(B) YOUR LORDSHIPS be pleased to issue a writ of mandamus, Or any other appropriate writ, order or direction, quashing and setting aside the action on the part of respondent authority in changing the category of the Catering Stall situated on Platform no.2/3 between Pillar no. 12 and 13 at Vaododara Railway Station Page 17 of 31 C/SCA/10893/2019 JUDGMENT from reservation for minority 3 % quota AND further be pleased to quash and set aside the issuance of the e-tender no. C45-BRC-15- GEN-WOMEN-19 in respect of Catering Stall situated on Platform no. 2/3 between Pillar no. 12 and 13 at Vaododara Railway Station (Subject Stall) inviting applications from General Category women INSTEAD of Reserved category (minority) 3 % quota as per clause 10.1.2 of the Catering Policy 2017 as being illegal, arbitrary, unjust, unreasonable, contrary to the Catering Policy, 2017 as also in violation of reservation policy of the respondent authority and violative of Art. 19 (1) (g) of the Constitution of India. (C) YOUR LORDSHIPS be pleased to stay the further proceedings in pursuance of the e-tender ho. C45-BRC-15-GEN- WOMEN-19 so far as it invites application from General category bidders and further be pleased to direct respondent no. 2 and 3 to consider the allotment of the Catering stall situated on Platform no. 2/3 between Pillar no. 12 and 13 at Vaododara Railway Station, under the reservation for minority in 3% quota as prescribed in Catering Policy 2017, pending, admission, hearing and final disposal of the present petition;” 16.The said Special Civil Application No. 7052 of 2019 is withdrawn by the petitioner on 11.4.2019. 17.On perusing the copy of the allotment order No. C-45/3/6 dated 23/24 June 1993, copy of the renewal order No. C-45/14/278 dated 24.3.2004 as well as the order passed by this court in SCA No. 3834 of 2015 and LPA No. 586 of 2016, the issue as regards to the allotment of Tea and Refreshment stall on basis of minority does not survive and finally concluded against the petitioner. There are number of people living below line of poverty in India. The case of petitioner cannot be considered on only source of income and livelihood as it will be again contravention of Article 14 of he Constitution of India on the ground of equal opportunity amongst equal. Page 18 of 31 C/SCA/10893/2019 JUDGMENT Right claimed by the Petitioner in pursuance of the order passed by the Hon'ble Supreme Court: 18.The Petitioner has submitted that she is in minority category and as per the order dated 29.1.2016 passed by the Hon'ble Supreme Court she is entitled to retain stall allotted to her husband. She has relied upon the observations made by the Hon'ble Supreme Court in SLP (C) No. 9921-23 of 2014 which reads as under: 33. therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the Respondents concerned. The action of the Railways in not granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law. 34. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court. The civil appeals are dismissed. The order dated 11-04-2014 granting stay of the impugned order shall stand vacated. We, however, make it clear that only those licensees may be eligible for renewal of their licenses who can declare on affidavit that they do not have the license of more than one shop or kiosk in their name or benami license at the railway stations with periodical reasonable increase of license fee. All pending applications are disposed of.” 19.During her submissions, learned counsel for the petitioner drew our attention to the orders passed by Hon'ble Apex Court. 19.2 However, she could not clarify as to whether the subject matter of the petition which are pending before Hon'ble Apex Court is related to the allottees themselves or heirs/legal representations and spouse of the allottee and whether the subject matter of the said petitions and applications include the dispute or claim about transfer of allotment or license to the spouse, that too Page 19 of 31 C/SCA/10893/2019 JUDGMENT after expiry of period of license granted to original allottee. 19.3 In view of our anxiety that any order different to the order and directions passed by Hon'ble Apex Court may not be, inadvertently, passed by us, we asked the learned counsel for the petitioner and sought clarification about the nature, scope and subject matter of the petitions before Hon'ble Apex Court. Our anxiety also arise because there is no clarity as to whether Hon'ble Apex Court has passed orders other than the orders which are placed on record of this petition or not. 19.4 However, learned counsel for the petitioner could not clarify said aspect. 19.5 She, however, emphasized the submission that her petition and claim as well as dispute are based on policy which came in force from 2017 and the dispute has arisen after completion of tender process initiated by the respondent since she has been asked to hand over the possession and the LOI is issued in favour of the successful bidder. 19.6 We also asked the learned counsel for the petitioner that if the dispute or claim is connected with the petitions and applications pending before Hon'ble Apex Court or if the claim is sought to be justified on the basis of order by Hon'ble Apex Court, then the petitioner may approach Hon'ble Apex Court with appropriate application. 19.7 However, the petitioner declared that the petitioner wants to Page 20 of 31 C/SCA/10893/2019 JUDGMENT pursue the petition for the relief which is claimed in the petition in light of the fact that the petitioner is aggrieved by fresh tender process and the instruction to hand over the possession of the stall and that any matter by the petitioner is not pending before Hon'ble Apex Court. 20.It is an admitted fact that the petitioner is not a party to the proceedings before the Hon'ble Supreme Court. 20.1 No order is passed by the Hon'ble Supreme Court considering the case of the Petitioner. 20.2 That the petitioner has filed Special Civil Application No. 3834 of 2015 and LPA No. 586 of 2016. Orders passed therein are not challenged before the Hon'ble Supreme Court. 20.3 The observations made in paragraph 33 and 34 by the Hon'ble Supreme Court in the SLP are relating to the petitioners of the said writ petition before the Hon'ble Supreme Court. Hon'ble Supreme Court has considered the catering policy 2010 in that cases. The said policy is now not relevant and applicable. It is replaced by policy of 2017. Therefore, the petitioner’s case has to be considered as per catering policy issued in 2017. 20.4 The Petitioner’s case does not appear to be comparable with the case of the Petitioner’s / Applicant’s before the Hon'ble Apex Court and the subject matter of present petition / the relief prayed for in present petition also do not appear to be similar to or comparable with the petitions and applications pending before the Page 21 of 31 C/SCA/10893/2019 JUDGMENT Hon'ble Apex Court. 20.5 The Petitioner has not shown any similarity and has not demonstrated comparison of the subject matter of present petition with the subject pending for consideration before the Hon'ble Apex Court. 20.6 Further, on the submissions by learned Counsel for the Petitioner and the relief prayed for, it has emerged that the Petitioner is aggrieved by the tender process initiated by the Respondent and the instruction issued by the Respondent after completion of tender process, to the petitioner to hand over possession so that the possession of the stall can be given to the successful bidder. Right of Petitioner under Catering Policy and its implementation: 21.In 2005, catering Policy 2005 was issued by the Ministry of Railway, New Delhi in which it was decided to hand over all the Catering units of A , B & C category of Railway Station to Indian Railway Catering & Tourism Corporation. The category of the station is determined as per the earning of the station. The Petitioner or Respondent has not produced such catering policy 2005. It is not in dispute that the license of the original allottee is renewed up to 31.10.2005. This fact is reflected in the order dated 24.3.2004. 22.After that in 2010 Ministry of Railway, New Delhi has issued New Catering Policy-2010 vide lettrer No. 2009 / TG III/600/25 dated Page 22 of 31 C/SCA/10893/2019 JUDGMENT 21.7.2010 [Commercial Circular No. 35 / 2010 which is produced by the Respondent at page Nos. 125 and 146A of this petition]. By this Policy, it was decided to get back all the Catering Units from Indian Railway Catering & Tourism Corporation. In said Catering Policy the category of the various stations also prescribe. As per the said Catering Policy 2010 Vadodara Railway Station is classified as category ‘A’ on the basis of earning of station. 21.1 As per clause 14.1.1 of the Policy 2010, the allotments of all major units and of General Minor Units at A, B & C category stations will be done through open, competitive, two-packet tendering system duly following all 'the procedures/instructions issued by Government of India/Railway Board from time to time. 21.2 As per Commercial circular No. 52/2 (correction slip no.4 to Commercial Circular no. 35/2010) Catering Poilcy -2010, issued by Ministry of Railways (Railway Board Central Government of India) modified para 21 is reproduced as below: “Transfer of license to the spouse / legal heir would be allowed only in the event of death of the original licensee. The license can be transferred in the name of spouse / legal heir for the unexpired period of the agreement only, with personal approval of the Chief Commercial Manager/Divisional Railway Manager/MD, IRCTC as the case may be. Nomination to the legal heir should be obtained from the license holder at the time of entering into contract. The nomination should be only from amongst the family members. After completion of the unexpired period renewal can be considered to the legal heir for both General and Reserved category minor static units licensees subject to satisfactory performance and payment of all dues, if any.” 21.3 It appears that the petitioner hold the possession of Tea and Page 23 of 31 C/SCA/10893/2019 JUDGMENT Refreshment Stall at the instance of order passed by this court in SCA and an undertaking submitted by her to the respondent. Her license is neither transferred nor renewed. 23.The Railway Ministry, Government of India has revised the Catering Policy in 2017 which was issued vide letter No. 2016/TG/III/600/1/PT dated 27.7.2017 vide Commercial Circular No. 20/2017. The objective of this policy is to provide quality of food to the customers, unbunding of catering services on trains. This policy also supersedes the catering policy of 2010 and related instructions unless specifically referred to in the policy document. 22.1 Vide Clause 9 allotment procedure for static catering units is prescribed. Relevant provision are as under: “9. Allotment Procedure for Static Catering Units (except static units mentioned in Para 3.8.1: 9.3 Zonal Railway shall have an effective and transparent contract awarding system for static catering unit A1, A, B & C category station. Allotment of static catering units will be done by e-tendering method. Till the finalization of e-tendering module and issuance of procedure order by Railway Board, normal tendering process shall be followed. 9.3.1 Allotments of all major static units (except units mentioned in Para 3.8.1) and of General Minor Units at A1, A, B & C category stations will be done through open, competitive, two- packet tendering system by divisions in accordance with the Standard Bid Documents issued vide Board’s letters No. 2010/TG- III / 600 / 12 / SBD / Pt. 3 dated 05/09/2012 and No. 2010 / TG – III / 600 / 12 / SBD / 1Pt 05/07/2011, duly following all the procedures / instructions issued by Government of India / Railway Board from time to time. Page 24 of 31 C/SCA/10893/2019 JUDGMENT 9.3.2 Allotment of Special Minor Units at A1, A, B & C category stations will be done by divisions through open tendering system within the similar reserved category. The technical eligibility criteria, however, shall be as under:- (a) Turnover of applicant’s business in catering (to be supported by Income Tax Return for the last 3 years) duly certified by Chartered Accountant (Exempted in case of BPL category). (c) The bidder shall be an Individual / sole proprietor who shall furnish relevant certificate from competent government authority as a proof of being a member of the particular reserved category in which he / she is bidding. (g) Any false declaration by the bidder on affidavit shall be treated as ‘Material Breach’ and would result in termination of the license and department / blacklisting of the licensee from participating further in allotment of catering on any zonal railway / IRCTC (h) Any other special condition considered relevant by Railway within the approval of the concerned CCM. Allotment should be made to the highest eligible bidder subject to the fulfillment of all th above criteria.” 22.2 The Reservation in Allotment is prescribed as under: 10. RESERVATION IN ALLOTMENT: 10.1 RESERVATION IN A1, A, B & C CATEGORIES 10.1.1There shall be no reservation for major units. 10.1.2There shall be 25% reservation for minor units in A1, A, B & C categories of stations with the following break up S.No. Category %age reservation 1. Scheduled Caste 6% 2. Scheduled Tribes 4% 3. Other Backward Classes 3% 4. Minorities* 3% Page 25 of 31 C/SCA/10893/2019 JUDGMENT 5. Dyvyang 2% 6. Freedom Fighters / War widows and widows of railway employees, persons who have been dislocated / displaced due to their land having been taken over by the railways for its own use. 4% 7. People below Poverty Line 3% Total 25% *the term minorities will include the communities namely (i) Muslims, (ii) Christians, (iii) Sikhs, (iv) Buddhists, (v) Zorastrians (Parsis) (vi) Jain 22.3 In the Catering Policy 2017 the tenure is prescribed in paragraph 11 as under: “11. TENURE: 11.1 Tenure of all major units being handed ever to IRCTC will be governed as per Catering Policy 2010 till the expiry of the contracts. IRCTC shall further manage these units as per the provisions of this policy. 11.2 Tenure of Food Plaza shall be for a period of 9 years. Tenure of all other catering units (Major Units & Minor Units) will be for a period of 5 years only. There will be no further extension / renewal, except for units specifically referred to in para 3.8.1.” 22.4 In this policy of 2017 the Clause as regards to transfer of license is provided vide Clause 18 which reads as under: “18. TRANSFER OF LICENSE:- Transfer of license to the legal heir would be allowed only in the event of death of the original licensee. The license shall be transferred in the name of the legal heir for the unexpired period of the contract as per General Conditions of Contract (GCC) of Railways. No subletting will be allowed.” Page 26 of 31 C/SCA/10893/2019 JUDGMENT 24.As per the revised Catering Policy 2017, the said Policy is made applicable with immediate effect i.e. from the date of issue. It is also provided that this Policy supersedes all prior Policies issued from time to time unless specifically referred in this policy documents. 24.1 The allotment of catering unit is required to be made by effective and transparent contract awarding system i.e. by e- tendering method within similar reserved category. This allotment is to be made only for 5 years. Transfer in the name of legal heir is only for unexpired period of contract. 24.2 Considering the Catering Policy 2017 and relevant Clauses as referred above, it is clear that the catering unit of late F. G. Shaikh run by present petitioner was not earmarked for Minority as stated by petitioner but it was earmarked for General-Women category as per Para 10 of Catering policy 2017 after draw of lots in transparent manner and accordingly tender was called for General-Women category. 24.3 The Petitioner cannot raise any objection before the allotment of stall is made to her. 24.4 For that purpose, she has to take part in the tender process. 24.5 She cannot claim that the present stall be allotted to her on the basis of minority etc. 24.6 In view of this Catering Policy also, the Petitioner has no Page 27 of 31 C/SCA/10893/2019 JUDGMENT right to retain the present Tea and Refreshment Stall. 25.The Respondent has issued letter No. C-45 / Master Plan / 17 dated 2.1.2018 to all the Catering Vendors / Contractors, Vadodara Division wherein it is stated that as per the Catering Policy there shall be 25% reservation for Minority Units in A1, A and B Category. This letter is produced at page 185 of this petition. The party is in the A1 category wherein out of 25%, reservation 3% reservation is given to the Minorities. The term ‘Minority’ includes the community namely (i) Muslims, (ii) Christians, (iii) Sikhs, (iv) Buddhists, (v) Zorastrians (Parsis) (vi) Jain. It is further stated that there shall be a provision of 33% sub-quota for woman category. It is further stated that accordingly all the Applicants are called for from all existing Category Unit holders. 25.1 There shall be a provision of 33% sub quota for women in allotment of each of the reserved category of minor catering units at all category of minor catering units at all category of stations. The sub quota of 33% for women will also apply in general category. 26.Pursuant to this letter, the Petitioner has submitted the declaration which is produced at page 186 of this petition which reads as under: “I, Smt. Kamar Sultana W/o F.G.Shaikh presently running tea & light refreshment stall at P.G. No. 2/3 Railway Station, hereby declared that I belong to Reserved under Muslim category (SC / ST / OBC etc. as mentioned in letter referred above), therefore I requests that my unit may be considered under reserved as per catering policy 2017. The attested copy of certificate for claiming reservation is enclosed herewith. Page 28 of 31 C/SCA/10893/2019 JUDGMENT I am aware that this declaration / request is for information to railway administration for earmarking of catering units and I have no objection in taking final decision by railway administration, which will be binding on me and earmarking of catering unit will not confer any rights for allotment of the said unit.” Petitioner’s Role in present tender issued by the Respondent: 27.Railway administration has floated e-tender No. C 45/BRC/15/GEN/Women/19 to be opened on 12.04.2019. 27.1 This tender has been floated in terms of para 9 specifically 9.3.1 of Catering Policy2017 (Commercial Circular No. 20/2017) issued by MW of Railways, Railway Board vide No. 2016/TGIII/600/1/Pt. dated 27.02.2017. 27.2 Further in terms of para 5 specifically 5.1, comprehensive blue print for the catering units prepared and reservation in allotment at A-1, A, B & C categories in terms of para 10 of the catering policy 2017 worked out. 28.It would not be out of place to mention here that the present petitioner has also participated in the tender, but could not qualify in the technical bid. 28.1 1t would also not be out of place to mention here that the Railway administration has already Finalized the tender process and as such, L0A dtd. 19.06.2019 have already been issued to successful bidder i.e. M/s Amber Foods @ 17, 52 ,555/- (PA) which 496.04 % higher than Rs. 2, 94 ,030/- (PA) license fee which the present petitioner is paying. Page 29 of 31 C/SCA/10893/2019 JUDGMENT 28.2 The tender is finalized for 5 years. 28.3 The successful bidder has already submitted advance accepted license fee of Rs. 17,52,555/- vide Demand Draft. 28.4 Therefore, there will be loss to government revenue by Rs. 14,58,525/- per annum in considering petitioners application. 29.The petitioner has filed declaration that she has no objection in taking final decision by the Railway Authority. 29.1 She has taken part or participated in the tender. 29.2 Her proposal remain unqualified. Considering the facts and circumstances of the case, it appears that she has no right to withhold the possession of the stall but also she has no right for allotment of a Tea and Refreshment center. 30.Having come to the conclusion that the Petitioner has not established that the respondents have changed the nature of the stall of the petitioner from that of the reserved category to general category and invited bids on the same, the petitioner has no right to continue to hold the possession of the stall at platform no.2 and 3 between column no. 12 / 13 at Vadodara Railway Station. 31.There is no irregularity in the tender process. Thus, there is no justification to quash and set aside the impugned e-tender No. C- 45/BRC/15/Gen/Women/19. Page 30 of 31 C/SCA/10893/2019 JUDGMENT 32.The petitioner has not made out her case for any direction to quash and set aside the impugned notice dated 21.6.2019 issued by respondent No. 3 by way of which the respondents have instructed the petitioner to vacate the Tea and Refreshment Stall held by her, within one week. The petitioner is not entitled to ask for status quo to be maintained with respect to the Tea and Refreshment Stall at the platform no.2 and 3 between column no. 12/13 at Vadodara Railway Station on any of the grounds stated in the petition. 33.It appears that the petitioner has not vacated the possession of Tea and Refreshment Stall on one or other grounds by filing different writ petitions. This is case in which the cost is required to be imposed. But, we are restraining ourselves to impost a cost, as the petitioner is a widow women. 34.Hence, the petition is required to be dismissed and accordingly stands dismissed. Notice is discharged. No order as to costs. (K.M.THAKER, J) (V. P. PATEL,J) J.N.W Page 31 of 31 "