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HIGH COURT OF PATNA
P. K. Banerji & S. Wasiuddin, JJ.
B. N. PRASAD - Petitioner
VERSUS
1. THE SUBDIVISIONAL MAGISTRATE, KISBUNGANJ
2. UNION OF INDIA, AND
3. THE DEPUTY CHIEF COMMERCIAL SUPERINTENDENT, N. F. RLY. - Respondents
Cr. W. J. C. No. 25 of 1971
Decided On : 29th November, 1971
INDIAN RAILWAYS ACT - SECTION 138 - JURISDICTION - RAILWAY SERVANT - CONTRACTOR - LICENSE - AGREEMENT INTERPRETATION - VALIDITY OF DISCHARGE OR SUSPENSION - STATUS DETERMINATION - MAGISTRATE'S JURISDICTION - AGREEMENT EXAMINATION - FACTUAL DETERMINATION - MASTER AND SERVANT RELATIONSHIP - QUESTION OF FACT.
Fact of the Case:
The petitioner, a contractor of the Railway Refreshment Room at Kishunganj railway station, challenged an order passed by the Sub-divisional Magistrate under Section 138 of the Indian Railways Act, directing him to vacate the Refreshment Room within 15 days. The petitioner claimed that he was not a railway servant but a lessee and could only be evicted under the Transfer of Property Act. The Railway Administration contended that the petitioner was a railway servant and that the application under Section 138 was properly filed.
Finding of the Court:
The court held that the Deputy Chief Commercial Superintendent, who filed the application under Section 138, was not competent to do so as per the agreement between the parties. The court also held that the Magistrate did not have jurisdiction to pass the order without examining the agreement to determine the petitioner's status as a railway servant or a lessee. The court further held that the question of whether the petitioner was a railway servant was a question of fact that needed to be determined by examining the agreement.
Issues: 1. Whether the Deputy Chief Commercial Superintendent was competent to file an application under Section 138 of the Indian Railways Act. 2. Whether the Magistrate had jurisdiction to pass the order without examining the agreement to determine the petitioner's status. 3. Whether the question of whether the petitioner was a railway servant was a question of fact.
Ratio Decidendi: 1. The court held that the Deputy Chief Commercial Superintendent was not competent to file an application under Section 138 of the Indian Railways Act because the agreement between the parties authorized only the Chief Commercial Superintendent to do so. 2. The court held that the Magistrate did not have jurisdiction to pass the order without examining the agreement to determine the petitioner's status because Section 138 of the Act only applies to railway servants. 3. The court held that the question of whether the petitioner was a railway servant was a question of fact that needed to be determined by examining the agreement.
Final Decision: The court quashed the order passed by the Sub-divisional Magistrate under Section 138 of the Indian Railways Act.
P.K. Banerji, J.
This writ application is directed against an ORDER :dated 27.3.1971, passed by the Sub-divisional Magistrate, Kishunganj under the provisions of Section 138 of the Indian Railways Act (hereinafter to be referred as the Act) directing the petitioner-contractor of the Railway Refreshment Room at Kishunganj railway station to vacate the Refreshment Room there within a period of 15 days from the date of the ORDER :failing which the local police was directed to get it vacated and take possession and hand over the same to the Station Master, Kishunganj Railway Station. The ORDER :was passed on a petition filed on behalf of the Union of India through the Deputy Chief Commercial Superintendent, N. F. Railway, Maligaon, Gauhati. The prayer is to issue an appropriate writ quashing the ORDER :aforesaid dated the 27th March, 1971 (Annexure 2) on the grounds stated in the petition.
2. The petitioner's case is that he entered into an agreement with the President of India represented by his duly constituted delegate in the matter arid the agreement was renewed from time to time, (the last renewal being on the 10th of July, 1967) for a period of three years. By that agreement the petitioner obtained a lease for catering vegetarian and non-vegetarian meals and other refreshment to the passengers at Kishunganj Railway Station as also for vending by means of Dalas, wheel barrows and stalls on the premises of the said railway station in ORDER :to meet the demand of different types of passengers and in consideration to this agreement the petitioner was paying to the Railway Administration a consolidated sum reserved in the lease representing the rent for all types of vending and catering under one receipt granted for the same. The petitioner invested a huge sum of money on furniture, crockeries, utensils etc. and employed a large number of persons for executing his part of the lease as a lessee. It is said that certain interested persons in the railway at Maligaon and at Katihar, with a view to oust the petitioner inspite of the agreement, put in advertisement in the Indian Nation of 2nd September, 1967, purporting to be by the Chief Commercial Superintendent, N. F. Railway at Pandu inviting applications from the persons of catering experience for running one unit of vegetarian-cum• non-vegetarian Refreshment Room at Kishunganj Railway Station. The officers concerned were determined to throw out the petitioner from 1st October of the year. To counteract the move, the petitioner filed a suit in the Court of 2nd Munsif at Kishunganj (Title Suit No. 72 of 1967) for a declaration and permanent injunction and an ad-interim ORDER :of injunction was issued by the said court and it was made absolute on the 15th December, 1967 (Annexure 1) by which the defendants of the suit were restrained from evicting the plaintiff from the suit premises and setting up any rival catering business at Kishunganj Railway Station till the disposal of the suit. An appeal was preferred before the District Judge of Parnea (Miscellaneous Appeal No.5 of 1968) against the said ORDER :of the Munsif and on the 24th September, 1970, a consent ORDER :was passed to the effect "that the authorities concerned will look into the Circular ORDER :No. 63 T. G. III/600 dated New Delhi 8.10.1963 from the Railway Board to the Manager of all the Railways before finally deciding the case of the plaintiff-respondent in respect of the catering contract at Kishunganj Railway Station". The petitioner's further contention is that the Railway Administration of N. F. Railway instead of taking steps to terminate the aforesaid contract allowed the petitioner to continue his business in terms of the said lease and the petitioner continued in expectation of a fresh renewal in course of time and the various privileges available to the petitioner as a lessee, namely free pass to the employees in service on the railway were being renewed. No notice was issued to the petitioner that
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