DEBASISH KAR GUPTA J. - (1.) THE first writ application bearing W.P. No.77 of 2010 is filed by the petitioner company assailing the policy guideline for permission of private siding for loading Iron ore framed by the Government of India, Ministry of Railways (Railway Board) under Freight Marketing Circular No. 12 of 2008 dated August 28, 2008, and the Revised Land Licence Bill dated November 5, 2009 as also final notice dated January 1, 2010.
(2.) THE second writ application is filed by the petitioner company assailing a reasoned order dated February 16 of 2010 passed by the General Manager, South Eastern Railway in compliance of an order dated January 6, 2010 passed in an application under article 226 of the constitution of India in the matter of M/s. Deepak Steel & Power Ltd. & Anr. Vs. Union of India (in re. W.P. no.830 of 2010). By virtue of the impugned order the respondent authority upheld the decision of fixing the value of the land in question @ Rs.50,000,00/- per acre for the year 2007-08. The aforesaid writ applications are taken up for analogous hearing with the consent of the parties. The facts of these cases in a nutshell are as under:- Government of India, Ministry of Railways(Railway Board) framed a policy on licensing of railway land for commercial plots etc. (Master Circular) and the same was circulated under memo no.2005/LML/18/8 dated February 10, 2005 (hereinafter referred to said Master Circular). Clauses 3,4,5 of the said Master Circular provided for the rates of licence fee, formation of a standing committee and fixing of land value respectively. Those provisions are quoted below: "3. Rates of licence fee 3.1. Licence fee of plots will continue to be fixed as a percentage of the land value, determined as per the procedure detailed in para-5 below. The percentage applicable w.e.f 1.4.04 to various types of plots will be as under: Item No. Types of Plots Annual Licence Fee as the Percentage of Land value (a) Railway related activities such 6% as City Booking offices, Out Agencies etc. (b) Ordinary Commercial Plots � 6% without structures (c) Ordinary Commercial Plots � (i) 7 1/2 with temporary structures for (ii) 6% stacking/storing (i) Covered area (ii) Open area (d) Steel Yards /Coal Dumps. Bulk 7 1/2 Oil Installations etc. (e) Land used to lay private sidings 6% (f) Shops/Retail Depots etc. 10% 4.0 Formation of a Standing Committee 4.1 A standing Committee of three HODs will be set up at the Headquarters of each Zonal Railway and other Railway Units. The Standing Committee consisting of CE, CCM and FA and CAO shall examine fresh cases connected with railway working as indicated in Para 3(a) to (e) ans submit its recommendation to G.M. for approval. 4.2 The periodical review will, however, be done by DRM on the recommendations of Divisional Heads of Engineering, Commercial and Finance Departments. The Committee will review annually whether the traffic commitments by the licensees of the commercial plots have actually materialised or not and in case of any deviation, initiate suitable corrective action including delicensing and vacation as necessary. 5.0. Fixing of land value 5.1. A market value would however, he required to be taken t0 serve as a base value for working out rental fee payable. This shall be fixed on the basis of the land value of the surrounding area as on 1.1.1985, as determined from the Revenue Authorities and/or from the following: (a) Evaluation of Town Planing Department; (b) Actuals as per PWD and CPWD transactions; (c) Actual Transaftions, as per documents filed in the Office of the Sub-Registrar; (d) Value of land as assessed by professional evaluators of the State and Central Governments; 5.2. The land value as worked out shall be increased every year on the 1st of April, starting from 1.4.1986, at the rate of 10% over the previous year's land value to arrive at the land value for the following year based on which the annual licence, fee shall be fixed. From 1.4.2004 onwards, the land value shall be increased at the rate of 7% every year ever the previous year's value. 5.3. However, for fresh cases of licensing of plots, for any purpose(s) defined in para 3.1(a) to (e) above, the licence fee shall be fixed after obtaining the current value of land in very rate cases where it is not possible to obtain the curent cost (reasons for which should be brought on record0, the uptates cost based on 1.1.1985 land price should be adopted. However, , for the Metropolitan towns of Mumbai, Kolkata, Delhi, and Chennai if the HODs' Committee feel that the land rates are widely varying within the City, two or more rates can be utilised for that city. Using this method, arrears of collection of license fee on this account should not be allowed to accumulate." In response to an application submitted by the petitioner company, the respondent authority granted permission in favour of the petitioner company under communication dated June 6, 2006 to start construction on proposed private siding of the petitioner company taking off from Barajamda Station in Chakradharpur Station under South Eastern Railway. After completion of the construction of the above private siding as also after complying with all formalities, a notification was issued by the respondent authority for information and guidelines of all concern that the petitioner company had commissioned the above private siding for picking onward/ downward goods traffic. The Government of India Ministry of Railway(Railway Board) framed policy guideline for permitting construction of private siding for loading of Iron ore under Freight Marketing Circular No.12 of 2008 and it was circulated under memo no.99/TC(FM)/26/1 dated August 28 of 2008. The respondent authority sent Revised Land Licence Bills dated November 5, 2009 assessing amount to be paid by the petitioner company for period of 2008-2009 at Rs.69,86,797 and for the period from 2009-2010 at Rs.1,33,60,800. It was followed by a final notice dated January 1, 2010 insisting upon the petitioner company to pay the aforesaid bill.
(3.) THE petitioner company filed an application under article 226 of the constitution of India in the matter of M/s. Deepak Steel and Power Ltd., Vs. Union bearing W.P. No.77 of 2010 challenging the aforesaid actions of the respondent authority. It was disposed of on January 6, 2010 directing the General Manager, South Eastern Railway to consider to consider the grievance of the petitioner company. Pursuant to the above directions, the General Manager South Eastern Railway passed a reasoned order dated February 16, 2010 upholding the decision of fixing the value of the land in question @ Rs. 5,00,000/- per acre for the year 2007-08. THE above order is the subject matter of challenge in writ application bearing W.P. No.830 of 2010. It is submitted by Mr. L. C. Behani, learned Senior Advocate appearing on behalf of the petitioner company, that in accordance with the provisions of clauses 3 and 5 of the said Master Circular the licence fee for private siding under reference should be raised @ 6% of land value as on January 1, 1985 as assessed by the Revenue Authority. According to clause 7 of the said Master Circular the licence fee should be revised @ 7% per annum. According to him, the value of the land in question was assessed by the Revenue Authority @ Rs.16,00,000/- per acre. The land value of the surrounding area was assessed by the same authority @ Rs.50,00,000/- per acre. According to him, the licence fee was assessed at Rs.50,00,000/- per acre taking into consideration irrelevant factor of the value of surrounding area and ignoring the relevant fact of the value of the land in question on the recommendation of the Standing Committee. According to him, the decision making process of determining the licence fee suffered from procedural impropriety for the above reason. It is further submitted by him that the reasoned order passed by the respondent authority cannot be sustained in law for the same reason. Mr. Behini relies upon the decisions of Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai & Anr., reported in (2004) 3 SCC 214 and Union of India Vs. Kartick Ch. Mondel, reported in AIR 2010 SC 3455 in support of his above submissions. On the other hand, it is submitted by Mr. Partha Sarathi Bose, learned Senior Advocate appearing for the respondents that clause 5.3 of the said Master Circular provided for taking into consideration current value of lands for fixing the licence fee in terms of clause 5(1) of the said Master Circular. After receiving the land value from the revenue authority, the licence fee of the private siding in question was determined by the Standing Committee in terms of the clause 4(1) of the said Master Circular. According to him Code 1023 of the Indian Railways Code for the Engineering Department, 1999 provided that market value might not be treated as Standard Rent always for good and sufficient reasons the same might be escalated suitably. According to him, the Standing Committee took into consideration the valuation of surrounding lands in view of the above provisions. It is also submitted by him that the petitioner company paid licence fees for the year 2006-2007, 2007-2008 and 2008-2009 on the basis of aforesaid valuation and stopped payment of licence fees thereafter. A communication issued by the Tahasildar, Barbil under memo no.3334 dated September 15, 2011 is relied upon to submit that kissam of the lands recorded as "G.B" means "Gharabari" which are homestead lands. So, according to him, the right of the petitioner company to challenge the impugned decision of the respondent authority should not be entertained following the doctrine weaver of his right. ;