SHEET WP No.561 of 2006 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE NARAYAN CHANDRA SAHA Versus UNION OF INDIA & ORS.BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 15th September, 2016.
Mr.Rupak Ghosh, Adv.…for the petitioner Mr.Malay Kr.
Das, Ms.Aparna Banerjee Adv.…for the respondents The Court : The petitioner has assailed few letters issued by the Railway Authorities demanding possession from the petitioner in respect of the licensed premises.
Learned Advocate for the petitioner has submitted that, the petitioner had entered into a licence agreement with the Railway Authorities on March 24, 1988.
He has referred to few clauses of such licence agreement and has submitted that, a notice to quit the licensed premises has not been issued by the designated Authority.
He has further submitted that, in any event, the Railway Authorities cannot take the law to their own hand and by invoking the provisions of Section 147 of the Railways Act, 1989 to take possession of the licensed property.
The Railway Authorities are to take recouRs.of the ordinary law for the purpose of evicting the petitioner.
The Railway Authorities have not done so.
The Railway Authorities have unilaterally taken possession of the licensed premises.
The Railway Authorities therefore should be directed to make over possession of such licensed property to the petitioner.
Learned Advocate for the petitioner has relied upon provisions of Section 200 (2) of the Railways Act, 1989 and has submitted that, the saving provision therein postulates that the provisions of Section 122 of the earlier Act being the Railways Act, 1890 would apply to the petitioner inasmuch as the licence agreement was executed and entered into prior to the coming into effect of the Railways Act, 1989.
He has referred to an unreported decision of this Hon’ble Court rendered in W.P.No.25015 (W) of 2013 (Dhurjati Prosad Das versus Union of India & Ors.) and has submitted that, the fact scenario obtaining therein and the fact scenario of the present case are different.
Therefore the ratio laid down in Dhurjati Prosad Das (supra) should not applicable.
He has relied upon (2014) 9 SCC263(Oil and Natural Gas Corporation LTD.versus Western GECO International Ltd.) and has submitted that, the action of the Railway Authorities have to be adjudged on the touchstone of reasonableness.
The Railway Authorities have taken possession of the licensed property unilaterally.
Such action should be set aside.
Learned Advocate for the Railway Authorities has relied upon Dhurjati Prosad Das (supra).He has submitted that, the petitioner is governed by the ratio laid down therein.
He has also relied upon an unreported decision of the Division Bench rendered CAN No.7470 of 2014 in F.M.A.No.686 of 2004 (M/S.Kesho Singh & Sons & ORS.versus The General Manager, Eastern Railway & Ors.).He has submitted that, the period of the licence has expired long prior to the writ petitioner coming to the Writ Court.
Therefore the writ petitioner does not have a legally enforceable right to maintain the writ petition.
No legal right of the petitioner has been demonstrated to be validated by the action of the Railway Authorities.
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner had entered into a licence agreement with the Railway Authorities on March 24, 1988.
The fiRs.clause of the licence agreement provides that, user of the licence would be for the period from April 1, 1988 to September 30, 1988.
No document has been disclosed in the writ petition to suggest that, the licence agreement was renewed by the Railway Authorities subsequent to its expiry.
In M/S.Kesho Singh (supra).the Division Bench was considering an appeal against a summary dismissal of a writ petition on the ground that, the writ petitioner did not have a subsisting legal right to enforce, after the expiry of the licensed period.
The appeal was dismissed on the ground that, the petitioner did not have a subsisting legal right to enforce with the expiry of the period of the licence.
In the present case the writ petition has been affirmed on April 13, 2006.
As noted above, the licence agreement was valid till September 30, 1988.
At the time of filing of the writ petition, therefore, the writ petitioner did not have a subsisting licence.
The writ petition on that score itself is not maintainable.
Learned Advocate for the petitioner has referred to the interim order passed by the Writ Court in an earlier writ petition filed by it to the effect that it had allowed the petitioner to pay the licence fees at the current rate.
In my view, such an interim order in an another writ petition does not vest the writ petitioner with any legal right to enforce in the present writ petition.
The fate of the earlier writ petition has not been made known to the Court, in spite of a query to such effect, by any of the parties.
The fact remains that, the licence agreement stood expired on the date of affirmation of the writ petition.
Therefore the writ petitioner did not have a subsisting legal right to enforce on the date of the presentation of the writ petition.
In the present case, the Railway Authorities had taken possession of the godown concerned on April 6, 2006.
Despite thereof the petitioner has not assailed taking over of the possession by the Railway Authorities in the writ petition.
What has been assailed are few letters of the Railway Authorities asking for possession.
No relief being claimed against such action of the Railway Authorities in obtaining possession from the petitioner, the rest of the reliefs as has been claimed in the petition pales into academic discussion.
In Dhurjati Prosad Das (supra).the Court had found that, the licensee was dispossessed in terms of Section 147 of the Act of 1989.
Such action of the Railway Authorities was upheld.
The fact scenario obtaining in Dhurjati Prosad Das (supra) is similar to that obtaining in the present case.
The Railway Authorities have taken possession in exercise of Section 147 of the Act of 1989.
On the strength of the ratio of Dhurjati Prosad Das (supra) the action of the Railway Authorities cannot be faulted.
The contention on behalf of the petitioner that, the petitioner continues to be governed under Section 122 of the Railway Act, 1989 in view of the provision of Section 200(2) of the Railways Act, 1989 cannot be accepted.
True, the licence agreement was executed prior to the coming into effect of the Act of 1989.
However Section 200 (2) of the Act of 1989 provides that, anything done or any action taken under the repealed Act, in so far as it is not inconsistent with the provisions of the Act of 1989, shall be deemed to have been done or taken under the corresponding provision of the Act of 1989.
The licence agreement contemplates expiry of the licence after the stipulated time.
The Act of 1989 allows eviction under Section 147.
The licence agreement having come to an end and the petitioner being given adequate notice to quit and the petitioner not vacating the licensed premises it was open to the Railway Authorities to invoke the provisions of Section 147 to evict the petitioner.
In ONGC (supra) the Supreme Court has held that, the action of the Authorities have to be reasonable.
Nothing has been placed on record to suggest that, the Railway Authorities in the facts of the present case, have acted unreasonably.
The Railway Authorities had taken possession subsequent to adequate notice for eviction.
The Railway Authorities had acted in terms of Section 147.
Such section has been interpreted in Dhurjati Prosad Das (supra) so as to permit the Railway Authorities to evict the licensee whose term has expired.
In such circumstances, I do not find any merit of the present writ petition.
W.P.No.561 of 2006 is dismissed.
Interim ordeRs.if any, stand vacated.
No order as to costs.
(DEBANGSU BASAK, J.) TR/