RAFIQ, J. - (1.) AFORESAID three writ petitions have been filed by trolley/stall holders selling eatables under licence from the Railways at different railway stations falling in the erstwhile Western Railways prior to reorganization of the Zones. They are aggrieved by the increase in the amount of license fee and consequential recovery thereof and have therefore approached this Court by filing these writ petitions. While Writ Petition No. 4391/00 has been jointly filed by as many as seventeen petitioners and there are ninety nine petitioners in Writ Petition No. 4799/2001 but the Writ Petition No. 4734/2000 has been filed by the petitioner Anil Goyal alone. Since the grievance raised in these petitions was founded on similar facts and redressal of which has been sought for by raising similar arguments of law, they were heard together and are now being decided by this common judgment.
(2.) BEFORE the rival arguments raised by the respective counsels in the cases are taken up for consideration, I deem it appropriate to first deal with the factual scenario giving raise to filing of these petitions. Vijay Kumar Chowrasiya and sixteen others have filed the Writ Petition No. 4391/2000 inter alia on the premise that the licence fee payable by the stall/trolley holders on the railway platforms is regulated by instructions/directions issued by the Railway Board from time to time. As per the original policy of the Board, licence fee was determined on fixed rate basis but in between it was sought to be determined on the basis of sales turnover. However finally it was decided that licence fee should be charged only on fixed rate basis. A decision was taken by the Railway Board on 22. 10. 86 which was circulated by the Chief Commercial Superintendent (Catering) of the Western Railway in his Circular dated 11. 11. 86 according to which it was decided that existing licence fee should be revised by 25% to 50% after a proper study at the time of renewal. Consequently, the Divisional Manager, Railways issued a directive on 8. 9. 1987 that the licence fee shall be increased by 25% to 50% as directed by the Railway Board. Various vendors thereupon submitted representations to the Chief Commercial Superintendent (Catering), who by his letter dated 30. 8. 88 decided that licence fee for Pan Bidi stalls and trolleys/trays be increased only by 25% instead of 50%. In spite of this however the respondents started revising the licence fee arbitrarily. The vendors at Jaipur Railway Station were therefore compelled to file S. B. Civil Writ Petition No. 4123/91 titlted National Federation of Railway Porters, Vendors and Bearers vs. UOI. This writ petition was decided on 11. 12. 1992 with the direction that licence fee can be revised only in accordance with the decision of the Railway Board dated 22. 10. 86 as contained in the Circular of the Chief Commercial Superintendent dated 11. 11. 87. The respondents have however served a notice on the petitioners dated 2. 8. 2000 whereby certain outstanding dues have been shown against the petitioners. The petitioners have been directed to deposit the arrears of licence fee from 1. 4. 85 to 31. 12. 1999. This according to the petitioners was not in conformity with the Railway Board decision dated 22. 10. 86 in as much as no prior notice was served upon the petitioners. Moreover, the licence fee cannot be increased retrospectively by the impugned notice dated 2. 8. 2000 in relation to past 15 years. Munna Lal Goyal and ninety eight others have filed the Writ Petition No. 4799/01 who were all licensees of the railways to sale eatable etc. on their platforms at different places in Jaipur Division of Western Railways. They also relied on the aforesaid judgment of the co-ordinate bench of this Court dated 11. 12. 1992. Challenge has been made to the demand notice dated 31. 7. 01 served upon them demanding the increased licence fee w. e. f. 1. 4. 1990 to 30. 6. 1999. They have also impugned this levy on the ground that the same was not in conformity with the Railway Board decision dated 22. 10. 86 and was contrary to the aforesaid judgment of the learned Single Judge and further that licence fee could not have been increased retrospectively for past nine years. Anil Goyal, the sole petitioner in Writ Petition No. 4734/2000 has also raised the same grievance on the similar grounds challenging the demand notice dated 2. 8. 2000 whereby the enhanced licence fee w. e. f. 1. 4. 1985 to 31. 12. 1999 has been demanded from him. He has the licence to run the stall and refreshment room and on Railway Station Marwar Junction in Ajmer Division of the Western Railways. He claims to have deposited the entire licence fee in the sum of Rs. 22,052/- upto 31. 12. 1996. His grievance is that the respondents by order dated 26. 12. 1996 revised the licence fee retrospectively and now are requiring him to pay a sum of Rs. 29,618/- instead. He claims to have deposited the sum of Rs. 21,728/- for refreshment room and another sum of Rs. 7890/- for stall as licence fee for the period from 1. 1. 97 to 31. 12. 2000. His case is that there was no outstanding dues against him upto 31. 12. 2000. Now suddenly by the impugned demand notice dated 2. 8. 2000 he has been called upon to deposit the sum of Rs. 1,24,177/- as arrears of licence fee for refreshment room and a sum of Rs. 32,045/- for stall. These writ petitions have thus been filed against the backdrop of the facts enumerated above. I have heard Shri G. S. Bapna, the learned counsel for the petitioners in the first two writ petitions and Shri R. C. Joshi, the learned counsel for the petitioner in the third writ petition and Shri Manish Bhandari, the learned counsel for the respondents in all three writ petitions.
(3.) SHRI G. S. Bapna, the learned counsel for the petitioners argued that the increase in the licence fee retrospectively by impugned demand notice was wholly unsustainable in law as the same was contrary to the Railways Board's decision dated 22. 10. 86. Relying on the judgment of this Court in National Federation, supra, SHRI Bapna argued that the controversy has been settled at rest by this Court in the said judgment in which no notice was given to the petitioners prior to respective increase in the amount of licence fee in relation to past 15 years and it was held that the authority at the divisional headquarters or any other subordinate authority cannot take a decision contrary to the decision taken by the Railway Board. It was argued that the licence fee at any rate cannot be increased retrospectively. This Court in the said judgment has authoritatively held that the licence fee cannot be increased by more than 25% to 50% whereas the proposed increase in the impugned notice is to the extent of even 3,000%. Referring to the chart enclosed with the writ petition as Schedule A, SHRI Bapna explained that the petitioners have been regularly making payment of the licence fee right from 1985 to 1989 as demanded and now suddenly after 15 years, the amount of licence fee has been enormously raised making such increase effective from 1st April, 1985. The petitioners who are only small time entrepreneurs are earning their livelihood by selling eatables on the platforms and they can ill afford such a multifold increase in the amount of licence fee and that too after such a long span of time. Shri R. C. Joshi, the learned counsel for the petitioner in the third petition referred to the allotment order dated 31. 7. 91 under which the licence was given to the petitioners to run the refreshment room and stall at the railway platform for a period of five years. In this order, the amount of licence fee. complete rent, water and electricity charges and cess was indicated with the stipulation that they are provisional. It is submitted that the Assistant Commercial Manager of the office of the D. R. M. later clarified that the amount of licence fee was inclusive of the amount of rent therefore the rent was not to be charged separately. However the respondents by order dated 26. 12. 96 finalized the amount of licence fee which was earlier fixed on provisional basis, thus exercised the option available with them to finalise the provisional rate of licence fee by impugned order dated 2. 8. 00 and revised the licence fee w. e. f. 1. 4. 85 till 31. 12. 99 retrospectively which was wholly unsustainable in law as no retrospective increase in the amount of licence fee could be made. The impugned demand notice dated 2. 8. 2000 is bad in law also because it was issued in utter violation of the principles of natural justice in as much as no opportunity of hearing was given to the petitioners prior to passing the said order. Shri R. C. Joshi argued that action of the respondents not only in making the respective increase in the licence fee but also demanding such increased licence fee from the petitioner w. e. f. 1. 4. 85 suffers from total non application of mind because the allotment of the refreshment room and the stall was made to the petitioner by order dated 31. 4. 91 w. e. f. 1. 9. 91 and therefore the licence fee w. e. f. 1. 4. 85 could not be demanded from them in any circumstances. Shri R. C. Joshi argued that as against the demand notice amount of Rs. 2,71,499/- as licence fee, the petitioner has deposited Rs. 2,88,346. 75 paise. Thus he has deposited a sum of Rs. 16,323. 75 in excess of what according to respondents was recoverable which amount is required to be refunded by the respondents. After filing the writ petition, the petitioner Anil Goyal harassed as he was with the enormous increse in the amount of licence fee, wrote a letter dated 1. 7. 2001 for termination of the contract and the contract was actually terminated on 31. 7. 2001. He therefore prayed that the respondents be required not only to refund the amount paid in excess as aforesaid but the amount as may be found refundable consequent upon the increase in the licence fee being declared illegal. The learned counsel for the petitioners have therefore prayed that the impugned orders increasing the amount of licence fee be declared illegal and unconstitutional and therefore be quashed and set aside. ;