Shankarbhai H. Patel and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
civil - imposition of ban - section 144 of railways act, 1989 and articles 14, 21 and 226 of constitution of india - petition filed challenging order imposing ban on sale of bidi/cigarettes in train and platforms - petitioner contended that ban could not be imposed as agreement in respect of sale of such products entered between parties - ban imposed in public interest and with reference to protection of environment - in such circumstances ban could be imposed even if there was agreement between parties in respect of sale of such products exist - petition challenging order dismissed. - - the learned counsel for the petitioners was called upon to show as to which is that provision of law or rule, which has been violated by the imposition of the ban, as aforesaid, but the learned counsel failed to point out any such provision of law or rule, which can be said to have been violated by the imposition of the ban on the sale of bidi and cigarettes.orderm.r. calla, j. 1. heard learned counsel.2. indian railways caterers association and other caterers, as petitioners, have preferred the present special civil application challenging the order/communication dt. 6-5-99 issued by the divisional railway manager (comml.), chhatrapati shivaji terminus, mumbai imposing the ban on sale of bidi/cigarettes on train and platforms. this order/communication dt. 6-5-99 is reproduced as under :--'central railway drm(c)'s office mumbai c.s.t. no. 88.c.159.co.policy shri/m/s. ------------------ dear sir/s sub : ban on sale of bidi/cigarettes on trains and platforms. it has been decided to impose ban on sale of bidi/cigarettes on trains and railway platforms from 5th june, 1999 the 'environment day', you are, therefore, advised to stop the sale of bidies/cigarettes from your catering establishments on railway platforms. these instructions should rigidly be followed on or from 5th june, 1999 followed failing which matter will be viewed seriously. please acknowledge the receipt of this letter. yours faithfully. sd/-divisional railwaymanager (comml.), chhatrapati shivaji terminus, mumbai.' 3. the learned counsel for the petitioner while alleging the aforesaid communication has made reference to an agreement for the sale of fruits, sweetmeat, tea and other articles within the railway premises by vendors, the date of agreement being 8-5-98 to which the divisional commercial manager of the central railway and the licensee are the signatories and it has been submitted that the imposition of the ban, as above, is contrary to the terms of this agreement dt. 8-5-98 as was entered into between the president of india as owner and administrator of central railway on the one part and m/s. gupta brothers i.e. the licensee on the other part. the learned counsel for the petitioners has also invited the attention of the court to the representation dt. 12-3-99, which was made to the union minister of state for railways and the reply dt. 19-4-99 given by the minister of state for railways to the secretary, indian railway caterer's association. the contents of this letter dt. 19-4-99, sent by the minister of state for railways, are reproduced as under for ready reference :--'mosr/302/res/756/99minister of stateramnaik for railways, parliamentary affairs,planning and programmeimplementation,government of india,new delhi-110 00119 april, 1999 dear shri guptajee, kindly refer to your fax letter dated 13-4-1999 about the hardship which will be faced because of the banning of cigarettes/bidies on railway platforms. as you are aware due to recent development in the parliament, the prime minister submitted his resignation along with his council of ministers. we are now working as a caretaker government. your letter will, therefore, be placed before the new railwayminister as and when he takes charge. i express my sincere thanks to you and all your colleagues for the co-operation extended during my tenure as a minister of state. with regards, yours sincerely,sd/-(ram naik) shri p. r. gupta,secretary,indian railway caterer's association, 320 hind rajasthan building, d. phalke road, dadar, mumbai-400 014.' 4. learned counsel for the petitioner has submitted that the minister has only conveyed that the present government was working as a caretaker government and, therefore, the representation shall be placed before the new railway minister as and when he takes charge. the learned counsel for the petitioners has submitted that because the consideration of petitioners' representation has been put off on the ground that the present government is a caretaker government, the petitioners have approached this court as there is violation of the terms of the agreement to which the reference has been made hereinabove. the learned counsel for the petitioner has also submitted that large number of persons, who are engaged in the job of sale of bidi and cigarettes etc. on the train and railway platforms shall suffer a reduction of a part of their income on account of the ban, which has been imposed, and he has also submitted that this ban has been imposed without affording any opportunity to the licensees and the members of the petitioner-association.5. i have heard learned counsel for the petitioners at length. the learned counsel for the petitioners was called upon to show as to which is that provision of law or rule, which has been violated by the imposition of the ban, as aforesaid, but the learned counsel failed to point out any such provision of law or rule, which can be said to have been violated by the imposition of the ban on the sale of bidi and cigarettes. so far as the violation of the agreement as such is concerned, this court having gone through the copy of the agreement, which is annexed as annexure 'c', finds that there is no specific mention permitting the sale of bidi andcigarettes as such. the learned counsel submits that it is included in the other articles and in the agreement there is no express prohibition against sale of bidi and cigarettes and, therefore, in absence of such an express prohibition against the sale of bidi and cigarettes, which has been going on for several years, there is no question of imposition of such a ban to the prejudice of the interest of the licensees. even if it is assumed that the licensees have been doing and have been engaged in the sale of bidi and cigarettes on the railway platforms and trains for years together, if for valid reasons the government takes a decision so as to impose a ban in the interest of the health of the public at large and the travellers and with reference to the protection of environment and the environmental laws, it cannot be said that there is violation of the agreement as such. it is always open for a welfare state to take appropriate policy decisions at appropriate time keeping in view the reasons of health, keeping in view the directive principles as enshrined in the constitution. if the government has to act so as to achieve the directive principles and in that direction a step is taken, it cannot be said that such steps should be declared to be illegal by the court because it is violative of some agreement. it may also be pointed out that it is not a case of any statutory agreement -- apart from the fact that as a question of fact, this court does not find it a case even of violation of the agreement. such ban can be imposed for just reasons to take care of the health hazards. all that has been done is to stop the sale of bidi/cigarettes from the catering establishments on the railway platforms and the government is within its right and justified to issue such orders and to say that such instructions should rigidly be followed. in such matters, there is no question of opportunity of hearing because it is not a case in which there is any penal consequence or violation of any legal right so as to deny any earned benefit. the question of giving of opportunity before taking a particular action arises only when an earned benefit is sought to be taken away and by no means it can be said that it is a case in which any earned benefit of any of the licensee has been taken away by the impugned communication dt. 6-5-99.6. learned counsel for the petitioner has placed heavy reliance on a decision of this court in the case of gscs corporation v. regional p. f. commissioner, reported in1999 (1) guj lh 803. in this case of gscs corporation (supra), a co-ordinate bench of this court was dealing with the order passed by the regional p. f. commissioner and in para 17 the court has observed that in a case where the accused has acted as adjudicator or opportunity of cross-examination has not been granted, or opportunity of leading evidence has wrongly been denied or for that matter, no reasons have been recorded before passing the order adversely affecting a person, it will be a case of breach of principles of natural justice. it is, therefore, obvious that the cases where the proceedings were held in the nature of quasi judicial proceedings affecting the rights of the parties under a particular enactment, which in this case was the provident fund act, the reasonable opportunity has to be granted as required by the statute itself and keeping in view the very nature of the proceedings. in the facts of the present case, it has been mentioned at the very outset that there is no question of violation of any rule or any provision of law and it cannot be said that the imposition of ban as such is an order to deprive any of the licensee of any earned benefit and, therefore, in this type of cases, the requirement of following the principles of natural justice cannot be invoked, more particularly when the action, which is challenged, is in fact based on a policy decision so as to give effect to the object contained in the directive principles, which we cherish the most to achieve. if such objects are to be achieved and for that purpose based on the principle of reasonable classification and keeping in view the reasons of public health and to reduce the health hazards, if the government takes a decision, which may be unpleasant to certain persons or parties or the licensees, and such action may be burdensome to some minds, yet this price, a small price indeed has to be paid, if at all we mean this country to be governed by rule of law in conformity with the directive principles contained in the constitution. therefore, the mere fact that it was not objected to for number of years in past to sell bidi and cigarettes on the railway platforms, would not confer any right on the licensee to continue the sale of these particular items.7. the learned counsel for the petitioner has submitted that the minister of state for railways himself has mentioned in the replyd/- 19-4-99 that, 'we are now working as a caretaker government'. that does not mean that if the government does not take a decision on any issue by saying that it is a caretaker government, that will give rise to a party a cause of action to approach the court, as if anything which cannot be decided by the government on the ground that it is a caretaker government, has to be decided by this court. there is no valid basis for filing this petition on the grounds contained in the petition to any other ground. in the opinion of this court, the present special civil application is wholly misconceived. there is no merit in this special civil application. the same is hereby dismissed.

Judgment:
ORDER

M.R. Calla, J.

1. Heard learned counsel.

2. Indian Railways Caterers Association and other Caterers, as petitioners, have preferred the present Special Civil Application challenging the order/communication dt. 6-5-99 issued by the Divisional Railway Manager (Comml.), Chhatrapati Shivaji Terminus, Mumbai imposing the ban on sale of bidi/cigarettes on train and platforms. This order/communication dt. 6-5-99 is reproduced as under :--

'CENTRAL RAILWAY DRM(C)'S OFFICE

MUMBAI C.S.T.

No. 88.C.159.Co.Policy

Shri/M/s. ------------------

Dear Sir/s

Sub : Ban on sale of Bidi/Cigarettes on trains and platforms.

It has been decided to impose ban on sale of Bidi/Cigarettes on trains and railway platforms from 5th June, 1999 the 'Environment Day',

You are, therefore, advised to stop the sale of Bidies/Cigarettes from your Catering establishments on Railway platforms.

These instructions should rigidly be followed on or from 5th June, 1999 followed failing which matter will be viewed seriously.

Please acknowledge the receipt of this letter.

Yours faithfully.

Sd/-

Divisional Railway

Manager (Comml.),

Chhatrapati Shivaji Terminus,

Mumbai.'

3. The learned counsel for the petitioner while alleging the aforesaid communication has made reference to an agreement for the sale of fruits, sweetmeat, tea and other articles within the railway premises by vendors, the date of agreement being 8-5-98 to which the Divisional Commercial Manager of the Central Railway and the Licensee are the signatories and it has been submitted that the imposition of the ban, as above, is contrary to the terms of this agreement dt. 8-5-98 as was entered into between the President of India as owner and Administrator of Central Railway on the one part and M/s. Gupta Brothers i.e. the licensee on the other part. The learned counsel for the petitioners has also invited the attention of the Court to the representation dt. 12-3-99, which was made to the Union Minister of State for Railways and the reply dt. 19-4-99 given by the Minister of State for Railways to the Secretary, Indian Railway Caterer's Association. The contents of this letter dt. 19-4-99, sent by the Minister of State for Railways, are reproduced as under for ready reference :--

'MOSR/302/RES/756/99Minister of StateRAMNAIK for Railways, Parliamentary Affairs,Planning and ProgrammeImplementation,Government of India,New Delhi-110 00119 April, 1999 Dear Shri Guptajee,

Kindly refer to your fax letter dated 13-4-1999 about the hardship which will be faced because of the banning of cigarettes/bidies on railway platforms.

As you are aware due to recent development in the Parliament, the Prime Minister submitted his resignation along with his Council of Ministers. We are now working as a caretaker Government. Your letter will, therefore, be placed before the new RailwayMinister as and when he takes charge.

I express my sincere thanks to you and all your colleagues for the co-operation extended during my tenure as a Minister of State.

With regards,

Yours sincerely,

Sd/-

(RAM NAIK)

Shri P. R. Gupta,

Secretary,

Indian Railway Caterer's Association,

320 Hind Rajasthan Building,

D. Phalke Road, Dadar,

Mumbai-400 014.'

4. Learned counsel for the petitioner has submitted that the Minister has only conveyed that the present Government was working as a caretaker Government and, therefore, the representation shall be placed before the new Railway Minister as and when he takes charge. The learned counsel for the petitioners has submitted that because the consideration of petitioners' representation has been put off on the ground that the present Government is a caretaker Government, the petitioners have approached this Court as there is violation of the terms of the agreement to which the reference has been made hereinabove. The learned counsel for the petitioner has also submitted that large number of persons, who are engaged in the job of sale of bidi and cigarettes etc. on the train and railway platforms shall suffer a reduction of a part of their income on account of the ban, which has been imposed, and he has also submitted that this ban has been imposed without affording any opportunity to the licensees and the members of the petitioner-Association.

5. I have heard learned counsel for the petitioners at length. The learned counsel for the petitioners was called upon to show as to which is that provision of law or Rule, which has been violated by the imposition of the ban, as aforesaid, but the learned counsel failed to point out any such provision of law or rule, which can be said to have been violated by the imposition of the ban on the sale of bidi and cigarettes. So far as the violation of the agreement as such is concerned, this Court having gone through the copy of the agreement, which is annexed as Annexure 'C', finds that there is no specific mention permitting the sale of bidi andcigarettes as such. The learned counsel submits that it is included in the other articles and in the agreement there is no express prohibition against sale of bidi and cigarettes and, therefore, in absence of such an express prohibition against the sale of bidi and cigarettes, which has been going on for several years, there is no question of imposition of such a ban to the prejudice of the interest of the licensees. Even if it is assumed that the licensees have been doing and have been engaged in the sale of bidi and cigarettes on the railway platforms and trains for years together, if for valid reasons the Government takes a decision so as to impose a ban in the interest of the health of the public at large and the travellers and with reference to the protection of environment and the environmental laws, it cannot be said that there is violation of the agreement as such. It is always open for a welfare State to take appropriate policy decisions at appropriate time keeping in view the reasons of health, keeping in view the directive principles as enshrined in the Constitution. If the Government has to act so as to achieve the directive principles and in that direction a step is taken, it cannot be said that such steps should be declared to be illegal by the Court because it is violative of some agreement. It may also be pointed out that it is not a case of any statutory agreement -- apart from the fact that as a question of fact, this Court does not find it a case even of violation of the agreement. Such ban can be imposed for just reasons to take care of the health hazards. All that has been done is to stop the sale of bidi/cigarettes from the catering establishments on the railway platforms and the Government is within its right and justified to issue such orders and to say that such instructions should rigidly be followed. In such matters, there is no question of opportunity of hearing because it is not a case in which there is any penal consequence or violation of any legal right so as to deny any earned benefit. The question of giving of opportunity before taking a particular action arises only when an earned benefit is sought to be taken away and by no means it can be said that it is a case in which any earned benefit of any of the licensee has been taken away by the impugned communication dt. 6-5-99.

6. Learned counsel for the petitioner has placed heavy reliance on a decision of this Court in the case of GSCS Corporation v. Regional P. F. Commissioner, reported in1999 (1) Guj LH 803. In this case of GSCS Corporation (supra), a co-ordinate Bench of this Court was dealing with the order passed by the Regional P. F. Commissioner and in para 17 the Court has observed that in a case where the accused has acted as adjudicator or opportunity of cross-examination has not been granted, or opportunity of leading evidence has wrongly been denied or for that matter, no reasons have been recorded before passing the order adversely affecting a person, it will be a case of breach of principles of natural justice. It is, therefore, obvious that the cases where the proceedings were held in the nature of quasi judicial proceedings affecting the rights of the parties under a particular enactment, which in this case was the Provident Fund Act, the reasonable opportunity has to be granted as required by the statute itself and keeping in view the very nature of the proceedings. In the facts of the present case, it has been mentioned at the very outset that there is no question of violation of any rule or any provision of law and it cannot be said that the imposition of ban as such is an order to deprive any of the licensee of any earned benefit and, therefore, in this type of cases, the requirement of following the principles of natural justice cannot be invoked, more particularly when the action, which is challenged, is in fact based on a policy decision so as to give effect to the object contained in the directive principles, which we cherish the most to achieve. If such objects are to be achieved and for that purpose based on the principle of reasonable classification and keeping in view the reasons of public health and to reduce the health hazards, if the Government takes a decision, which may be unpleasant to certain persons or parties or the licensees, and such action may be burdensome to some minds, yet this price, a small price indeed has to be paid, if at all we mean this country to be governed by rule of law in conformity with the directive principles contained in the Constitution. Therefore, the mere fact that it was not objected to for number of years in past to sell bidi and cigarettes on the railway platforms, would not confer any right on the licensee to continue the sale of these particular items.

7. The learned counsel for the petitioner has submitted that the Minister of State for Railways himself has mentioned in the replyD/- 19-4-99 that, 'we are now working as a caretaker Government'. That does not mean that if the Government does not take a decision on any issue by saying that it is a caretaker Government, that will give rise to a party a cause of action to approach the Court, as if anything which cannot be decided by the Government on the ground that it is a caretaker Government, has to be decided by this Court. There is no valid basis for filing this petition on the grounds contained in the petition to any other ground. In the opinion of this Court, the present Special Civil Application is wholly misconceived. There is no merit in this Special Civil Application. The same is hereby dismissed.