I.D. Dua, J. - (1.) IN this appeal by special leave the appellant who has appeared in person challenges the order of a learned single Judge of the Gujarat High Court (Shelat J.) dismissing in limine criminal revision against the order of the Sessions Judge dated October 4, 1969 dismissing the appellant's revision from the order of the Judicial Magistrate, Kalol dated August 30, 1969 granting the application of the railway administration under Section 138 of the Indian Railways Act and directing the P.S.I. Railways at Sabarmati who is also the P.S.I. Railways at Kalol to secure possession of the stalls in question from the appellant to the railway administration or to the person appointed by the administration in that behalf.
(2.) THE appellant had, on February 9, 1964, entered into an agreement with the railway administration by means of which he was allotted a Tea Table (hereafter described as Tea Stall) at Kalol railway station. This agreement came into force from May 18, 1964 and subject to the provisions for earlier termination was to remain in force for three years. By a similar agreement dated February 20, 1965 the appellant was allotted a Refreshment Stall at the same railway station for a period of three years subject to the provision for earlier termination similar to the first agreement. In both the agreements the appellant was described as the licensee. Under these agreements the terms of which are identical the appellant was to run the two stalls in accordance with the directions of the railway administration. In addition to other terms for earlier termination, the agreements were also terminable under Clause 52 by one month's notice on either side without assigning any reason. On July 11, 1965" the two Stalls were inspected by the Commercial Inspector and the Station Master and it was found that the appellant had committed irregularities and was not running them in accordance with the directions of the railway administration. A fine of Rs. 100 was imposed on him in terms of the agreement, the fine being payable within one week under Clause 38(a). The amount of fine having not been paid within the stipulated period a notice was given to the appellant on September 16, 1965 for vacating the railway premises by October 30. 1965. The appellant having failed to vacate the premises, the agreements were terminated with effect from November, 1965. As the possession of the Tea and Refreshment Stalls was not delivered by the appellant to the railway administration, the latter applied to the Judicial Magistrate, Kalol under Section 138 of the Indian Railways Act for securing possession of the aforesaid premises. Before the Magistrate it was not disputed that since the appellant had to work under the supervision and according to the directions of the railway administration he was a railway servant. This, according to the learned Magistrate, was not denied by the appellant even in his written statement; on the other hand it was claimed that the position of the appellant was at par with that of the railway servants. The appellant contested the application principally on the ground that the contracts of the Tea and Refreshment Stalls had been entered into with the appellant with the object of rehabilitating him as a displaced person from Pakistan and that, therefore, those contracts could not be terminated. After a lengthy discussion on the points raised the learned Magistrate expressed his final conclusion in these words : The opponent is proved to be railway servant. Also it is proved that his service has been lawfully discharged. Mr. Thakursingh, the learned advocate for the opponent has contended that the applicant has terminated the agreement without any justification and without assigning any reason. But that is not required to be done by either party to the agreement. It is argued by Mr. Thakursingh that the opponent is prepared to pay arrears of licence fees to the tune of Rs. 4.000 or so and he is prepared to pay the same to the railway. But that is not a good ground to disallow the application. Section 138 of the Railways Act provides for summary remedy for delivery to Railway Administration of property detained by a railway servant. The opponent who is proved to be a discharged railway servant refuses to deliver the stall and the place on which he is permitted to place a tea table though served with notice. Hence he is liable to be summarily evicted. He has prolonged the matter for unreasonably long period under different excuses. His services are terminated and so he has occupied the stall and the place for table unauthorisedly.... Reliance for holding the appellant to be a railway servant was placed on S.L. Puri v. Emperor, A.I.R. 1937 Lah 547.
(3.) THE appellant took the matter in revision to the court of the Sessions Judge. There the appellant denied that he was a railway -servant and urged as an alternative submission that even if he was a railway servant he had not been validly discharged. In any event, so proceeded his contention, no notice to deliver possession of the Stalls having been given to him before filing the application under Section 138, he could not be dispossessed through the court. The Sessions Judge did not agree with these submissions and held that termination of the contract amounted to the appellant's discharge and, therefore, proceedings could lawfully be initiated against him under Section 138 of the Indian Railways Act for summary delivery of property, in his possession or custody, to the railway administration. The appellant was held to have become a railway servant by virtue of Sections 3(7) and 148(2) of the Indian Railways Act. The Sessions Judge relied for his view both on S.L. Puri's case, A.I.R. 1937 Lahore 547 and R.L. Majumdar v. : AIR1959Cal64 . A revision to the High Court, as noticed earlier, was dismissed in limine.;