RATHORE, J. - (1.) THESE are 19 similar writ petitions involving similar question of law. At the request of the respective parties the aforesaid writ petitions are being decided by this common order. Facts of the case of Nihchal Dass & Company & Ors. vs. Union of India & Anr. (S. B. Civil Writ Petition No. 2465/2004) are taken as leading case.
(2.) THE petitioners are all carrying the business of Catering at various stations of the Jaipur Division of North Western Railway. THEy are providing catering service to traveling passengers, Earlier also the respondents increased license fees and therefore, the Federation of Railway Porters, Vendors and Bearers filed S. B. Civil Writ Petition No. 4123/1991, which was decided on 11. 12. 1992. THE operative portion of the order is reproduced as under. " This writ petition is, therefore, allowed and it is directed that the respondents would charge the licence fee from the members of the petitioner federation of the basis of increase by 25% to 50% in the existing license fee in terms of the decision, which was taken in the meeting of the Chief Commercial Superintendent and Member Traffic of the Railway Board in the month of September, 1986, in terms of which the instructions contained in the Circular Annexure-2 and 3 dated 2. 01. 1987 and 5. 01. 1987 were issued and, any notice of demand or circular which may have been issued by the railway authorities in contravention of the aforesaid two circulars shall not be acted upon and given effect to against the members of the petitioner federation as such demand has already been stayed by this Court on 24. 07. 1991. " Earlier the license fees, which was charged from the petitioners was at the fixed rate and at some point of time it was charged on the percentage of sale turn over bearing 3 to 4%. That system was given go bye and fixed license fee was levied. The controversy arose when the respondents have issued a new Catering Policy-2000. The learned counsel for the petitioners referred para 15. 4 of new Policy, which deals with the license fee and the same is reproduced as under:- " 15. 4 License Fee License fee will be 12% (or any other percentage commission on sales notified from time to time) of estimated annual sales turn over for both general and reserved categories. In the case of static units, there will be no separate charges towards rent for building/land, vendor's fee and conservancy charges etc. except electricity and water charges based on actual consumption. " As per clause 15. 4 of the new Policy of 2000 the license fees is charged on the basis of annual sales turn over and same is challenged by the petitioner in the aforesaid writ petitions on several counts. The challenge the policy of 2000 regarding charging license fee on the basis of annual sales turn over on the ground that it is not a fee, it is a tax as they are charging the fee on the basis of turn over. In support of his submissions Mr. Bapna referred Entry 54 List II of VII Schedule and by referring the Entry 54 List II he submits that it is only the State Legislature, which is competent to levy the sales tax and not the Union of India and therefore, the levy of license fee, which is in pith and substance sales tax is beyond the competence of Union of India and as such para 15. 4 of the Catering Policy 2000 is illegal beyond the legislature competence.
(3.) MR. Bapna further submits that the respondents are only providing permission to carry on the Catering activity on the platform on the terms and conditions enumerated in the contract agreement. The fee, which has been charged on the basis of turn over is not a fee but a sales tax. Merely a nomenclature of fee does not give the right to the respondents to levy sales tax, which is beyond the competence of Union of India as per Entry 54 Listii. This policy is also challenged on the ground that the respondents are not allowing the petitioners to charge the rate of their like and the petitioners only charging the rate fixed by the respondents and the rate so fixed by the respondents are highly competitive and the margin of profit does not exceed 5 to 10%. Therefore, if the license fee is charged with 12% of the sales turn over then the petitioners would not be able to earn their livelihood because there would hardly be any margin. Further this policy has been challenged by the petitioners on the ground that application of the catering policy 2000 is made retrospective as indicated in Annex. 1 that the dues outstanding shown from 1999-2003 is made retrospectively effective from the year 1999 i. e. w. e. f. 1. 7. 1999. As also evident by th notice issued by the respondents dated 26. 12. 2003 to the petitioners levying license fee with retrospective effect from 1. 7. 99 to 31. 12. 2003 at the rate of 12% of the sales turn over and has raised huge demand in an illegal manner. ;