justice, we allow the members of respondents who
are the licensees to continue their petty
business, especially in the absence of employment
potentiality in the country on account of
non-governance and non- implementation of the
constitutional philosophy of an egalitarian
society, which provides the opportunity to all
individuals to lead a life of dignity. The right
to life with dignity has been interpreted to be a
part of right to life by this Court in the case of
Francis Coralie Mullin v. Administrator, Union
Territory of Delhi & Ors. (1981) 1 SCC 608 , as under:
“We think that the right to life
includes the right to live with human
dignity and all that goes along with
it, namely, the bare necessaries of
life such as adequate nutrition,
clothing and shelter and facilities for
reading, writing and expressing
one-self in diverse forms, freely
moving about and mixing and commingling
with fellow human beings. Of course,
the magnitude and content of the
components of this right would depend
upon the extent of the economic
development of the country, but it
must, in any view of the matter,
include the right to the basic
necessities of life and also the right
to carry on such functions and
activities as constitute the bare
minimum expression of the human-self.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVILAPPELLATE JURISDICTION
CIVIL APPEAL NOS.618-620 OF 2016
(Arising Out of SLP (C) Nos.9921-9923 of 2014)
SENIOR DIVISIONAL COMMERCIAL MANAGER & ORS. ………APPELLANTS
Vs.
S.C.R. CATERERS, DRY FRUITS, FRUIT JUICE
STALLS WELFARE ASSOCIATION & ANR. ………RESPONDENTS
Dated;January 29, 2016
V. GOPALA GOWDA, J.
Applications for intervention are allowed.
2.Leave granted.
3.The present appeals arise out of the impugned
judgment and order dated 12.09.2013 passed by the
High Court of Judicature of Andhra Pradesh at
Hyderabad in W.A. Nos. 1573-1575 of 2013, whereby
the Division Bench of the High Court upheld the
order of the learned single Judge, wherein it was
held that the respondents are entitled to getPage 2
2
their licenses renewed under the Catering Policy,
2010.
4.The relevant facts which are required for us to
appreciate the rival legal contentions advanced on
behalf of the parties are stated in brief
hereunder:
Respondents before us are the South Central
Railway Caterers, Dry Fruits, Fruit Juice Stalls
Welfare Association, (hereinafter referred to as
“the Welfare Association”). The members of the
Welfare Association were granted licenses for
running General Minor Units or Special Minor Units
in Categories “A”, “B” and “C” Railway Stations.
These licenses were granted in favour of the
members of the respondents prior to the creation
of the Indian Railways Catering and Tourism
Corporation Limited (hereinafter referred to as
“IRCTC”) under the Catering Policy, 2005. In terms
of the said Policy, the contracts under Categories
“A”, “B” and “C” Railway Stations were transferred
to the IRCTC while the contracts granted underPage 3
3
Categories “D” to “F” Railway Stations were
continued under the control of the South Central
Railways till the IRCTC was equipped to take over
these units. The contracts held by the members of
the Welfare Association were renewed during the
subsistence of the Catering Policy, 2005. The said
policy was replaced by the Catering Policy, 2010.
Under the new Policy, the contracts of all the
existing major and minor catering units were to be
awarded and managed by the Zonal Railways. The
IRCTC was left with the running of the Food Plaza,
Food Courts and Fast Food Units only. Pursuant to
the Catering Policy, 2010, the South Central
Railway granted renewal of licenses in favour of
the licensees for a period of three years with
effect from 21.07.2010, the date on which the
Catering Policy, 2010 was made effective in
respect of the General Minor Units (GMUs) and
Special Minor Units (SMUs) taken over from the
IRCTC, subject to the conditions stipulated in
paras 16.1.3 and 16.2.1 of the Catering Policy,Page 4
4
2010. The renewed licenses were to expire on
20.07.2013. On 26.04.2013, the Senior Divisional
Commercial Manager, Vijayawada, issued a bid
notice inviting sealed bids on the Single Stage
Two-Packet System from food and catering service
providers for provision of catering services at
the various GMUs of Categories “A” and “B”
Railways Stations in the Vijayawada Division. A
similar notification dated 03.05.2013 was issued
for establishment of catering stalls/fruits and
fruit juice stalls in SMUs in “A1”, “A” and “B”
Category Railway Stations. Aggrieved, the
respondent-Association, the members of which had
existing licenses, filed a Writ Petition before
the single Judge of the High Court of Judicature
of Andhra Pradesh at Hyderabad. The
respondent-Association urged that the said action
of inviting fresh bids is discriminatory and also
contrary to the provisions of the Catering Policy,
2010. The main plea of the respondent-Association
was that in terms of the Catering Policy, 2010,Page 5
5
the existing licensees were entitled for renewal
of their licenses for a period of three years,
subject to their satisfactory performance, payment
of all dues and arrears and withdrawal of court
cases, if any. They prayed that the appellant be
directed to renew the licenses of the existing
license holders of the canteens and fruits and
fruit juice stalls. Vide judgment and order dated
16.08.2013, the learned single Judge came to the
conclusion that the Catering Policy, 2010 did not
differentiate among the licensees based on the
number of years for which they have been carrying
on their business. It was further held that under
the Catering Policy, 2010, the license fee is
liable to be revised based on the potentiality of
each Railway Station and the turnover of the
licensees during the previous years. Since the
license fee is subject to continuous revision and
does not remain stagnant, the question of the
Railways suffering any loss due to renewals would
not arise. The learned single Judge held that thePage 6
6
members of the Welfare Association are entitled
for renewal of the licenses of the members subject
to their satisfying the conditions stipulated in
paras 16.1.3 and 16.2.1 of the Catering Policy,
2010. On appeal filed by the appellants, the
judgment and order of the learned single Judge was
upheld by the Division Bench of the High Court in
the Writ Appeals vide its judgment and order dated
12.09.2013. Hence, the present appeals are filed
by the appellants.
5.We have heard the learned senior counsel for both
the parties. On the basis of the pleadings and
evidence on record produced before us, the
circumstances of the case and also in the light of
the rival legal contentions urged by the learned
senior counsel for both the parties, the main
question that arises for our consideration is
whether the members of the respondents before us
are entitled to have their licenses renewed in
terms of the Catering Policy, 2010.Page 7
7
6.Mr. N.K. Kaul, the learned Additional Solicitor
General appearing on behalf of the appellants drew
our attention to the important provisions of the
Catering Policy, 2010. The objective of the Policy
reads as under:
“1.1 To provide hygienic, good quality
affordable food to the travelling public by
adopting best trade and hospitality
practices.
1.2 The policy will have an inclusive
approach where from the least advantaged
passenger to the relatively affluent will be
provided catering services in a socially
responsible manner.
1.3 It should meet all the social objectives
of the Government, including provision of
reservations as per Government Directives
issued from time to time.”
7. The learned ASG contends that the terms of the
Catering Policy, 2010 are absolutely clear. The
larger issue here is the right to livelihood of
the licensees who are members of the respondents.
The welfare of the people is the prime concern of
any responsible government under the provisions of
the Constitution. The learned ASG places reliancePage 8
8
on the case of Lala Ram v. Union of India1,
wherein the concept of a welfare state has been
discussed as under:
“A welfare state denotes a concept of
government, in which the State plays a key
role in the protection and promotion of the
economic and social well-being of all of its
citizens, which may include equitable
distribution of wealth and equal
opportunities and public responsibilities
for all those, who are unable to avail for
themselves, minimal provisions for a decent
life. It refers to "Greatest good of
greatest number and the benefit of all and
the happiness of all". It is important that
public weal be the commitment of the State,
where the state is a welfare state. A
welfare state is under an obligation to
prepare plans and devise beneficial schemes
for the good of the common people. Thus, the
fundamental feature of a Welfare state is
social insurance. Anti-poverty programmes
and a system of personal taxation are
examples of certain aspects of a Welfare
state. A Welfare state provides State
sponsored aid for individuals from the
cradle to the grave. However, a welfare
state faces basic problems as regards what
should be the desirable level of provision
of such welfare services by the state, for
the reason that equitable provision of
resources to finance services over and above
the contributions of direct beneficiaries
would cause difficulties. A welfare state is
one, which seeks to ensure maximum happiness
1
(2015) 5 SCC 813Page 9
9
of maximum number of people living within
its territory. A welfare state must attempt
to provide all facilities for decent living,
particularly to the poor, the weak, the old
and the disabled i.e. to all those, who
admittedly belong to the weaker sections of
society. Articles 38 and 39 of the
Constitution of India provide that the State
must strive to promote the welfare of the
people of the state by protecting all their
economic, social and political rights. These
rights may cover, means of livelihood,
health and the general well-being of all
sections of people in society, specially
those of the young, the old, the women and
the relatively weaker sections of the
society. These groups generally require
special protection measures in almost every
set up. The happiness of the people is the
ultimate aim of a welfare state, and a
welfare state would not qualify as one,
unless it strives to achieve the same.”
(emphasis laid by this Court)
8. The learned ASG further places reliance on the
case of Ram & Shyam Company v. State of Haryana2,
relevant paragraph of which is quoted hereunder:
“12. Let us put into focus the clearly
demarcated approach that distinguishes the
use and disposal of private property and
socialist property. Owner of private
property may deal with it in any manner he
likes without causing injury to anyone
else. But the socialist or if that word is
jarring to some, the community or further
2 (1985) 3 SCC 267Page 10
10
the public property has to be dealt with
for public purpose and in public interest.
The marked difference lies in this that
while the owner of private property may
have a number of considerations which may
permit him to dispose of his property for a
song. On the other hand, disposal of public
property partakes the character of a trust
in that in its disposal there should be
nothing hanky panky and that it must be
done at the best price so that larger
revenue coming into the coffers of the
State administration would serve public
purpose viz. the welfare State may be able
to expand its beneficent activities by the
availability of larger funds. This is
subject to one important limitation that
socialist property may be disposed at a
price lower than the market price or even
for a token price to achieve some defined
constitutionally recognised public purpose,
one such being to achieve the goals set out
in Part IV of the Constitution. But where
disposal is for augmentation of revenue and
nothing else, the State is under an
obligation to secure the best market price
available in a market economy An owner of
private property need not auction it nor is
he bound to dispose it of at a current
market price. Factors such as personal
attachment, or affinity, kinship, empathy,
religious sentiment or limiting the choice
to whom he may be willing to sell, may
permit him to sell the property at a song
and without demur. A welfare State as the
owner of the public property has no such
freedom while disposing of the public
property. A welfare State exists for the
largest good of the largest number more so
when it proclaims to be a socialist State
dedicated to eradication of poverty. AllPage 11
11
its attempt must be to obtain the best
available price while disposing of its
property because the greater the revenue,
the welfare activities will get a fillip
and shot in the arm. Financial constraint
may weaken the tempo of activities. Such an
approach serves the larger public purpose
of expanding welfare activities primarily
for which the Constitution envisages the
setting up of a welfare State.”
(emphasis laid by this Court)
9.The interest of the passenger has no correlation
with social objectives. The main objective of the
Catering Policy, 2010 is to provide food at an
affordable price to the railway passengers. The
learned ASG further contends that the State is
entitled in law to frame a new policy in that
respect. The learned ASG contends that the Policy
contains detailed mechanisms and makes it very
clear for whom it is meant. The learned ASG draws
our attention to clause 3.3.1 of the Policy which
reads as under:
“3.3.1 All existing major and minor
catering units will be awarded and
managed by the zonal railways, except
Food Plaza, Food Courts, fast food units.
All such contracts presently beingPage 12
12
managed by the IRCTC, on expiry of the
contract period, will be awarded by the
zonal railways. IRCTC will not renew any
contract required to be handed over to
zonal railways on expiry of the
contract.”
10. The learned ASG further draws our attention
to clause 16.1.3 of the 2010 Policy which reads as
under:
“16.1.3 Allotment of all General Minor
Units at A,B & C category stations shall be
awarded for a period of five years with a
provision for renewal after every 3 years
on satisfactory performance and payment of
all dues and arrears and withdrawal of
court cases, if any. Allotment of all
General Minor Unis at D,E & F category
stations will be for a period of 5 years
with a provision for renewal after every 5
years for a further period of 5 years on
satisfactory performance and payment of all
dues and arrears and withdrawal of court
cases, if any.”
The learned ASG contends that by virtue of clause
16.1.3, the members of the respondents cannot claim
renewal of their license as a matter of right. The
learned ASG further placed reliance on clause 26.1.1
of the 2010 Policy which reads as under:
“26.1.1 All existing operational catering
licenses awarded by IRCTC and transferredPage 13
13
to Zonal Railways will be governed by the
existing Catering Policy 2005 upto the
validity of their contractual period.”
Further, Clause 26.1.4 of the policy reads as under:
“26.1.4 This policy will also apply in
case of award of fresh licenses and
licenses awarded in the event of
termination, non-renewal, vacation etc. of
the existing licenses.”
11. The learned ASG further contends that a
welfare State has to generate more money to take
care of the larger public interest. He further
contends that the claim of the members of the
respondents that they have a vested right to get
the renewal of their license in the railway
stations referred to supra and that the government
cannot expand its competitors is completely
unsupported in law.
12. The learned ASG further contends that the entire
policy is not under challenge. It is only the
clause which confers the right of renewal of the
license which has been challenged. The scope of
the judicial review in such cases is limited. For
the Court to examine the validity of the same, thePage 14
14
policy either needs to be arbitrary, or must
suffer from some glaring error and must be
perverse, or be contrary to constitutional
provisions. The learned ASG, in support of his
contentions, places reliance on the case of Jivan
Das v. Life Insurance Corporation of India & Anr.3
to contend that the right to livelihood of
licensees cannot be extended to use public
property to the best advantage as a commercial
venture. It was held in that case as under:
“An owner is entitled to deal with his
property in his own way profitable in its
use and occupation. A public authority is
equally entitled to use the public
property to the best advantage as a
commercial venture. As an integral
incidence of ejectment of a
tenant/licensee is inevitable. So the
doctrine of livelihood cannot
discriminately be extended to the area of
commercial operation.”
13. On the other hand, Mr. Prashanta K. Goswami,
the learned senior counsel appearing on behalf of
some of the respondents, draws our attention to
the Catering Policy, 2010. He contends that
3 1994 Supp (3) SCC 694Page 15
15
revenue collection for the State cannot be a
yardstick or consideration for deciding renewals
of licenses of licensees. The learned senior
counsel further submits that the licenses of these
small shop/ kiosk owners have been renewed in some
zones of the Railways, while in others not
renewed, which action of the appellants is
violative of Article 14 of the Constitution of
India.
14. Mr. Raju Ramachandran, the learned senior
counsel appearing on behalf of one of the
respondent licensees contends that renewal of the
licenses of the members is the norm under the
Catering Policy, 2010 and that the right to
renewal must be read into the contracts of the
existing licensees. The learned senior counsel
further contends that the social objectives of the
Central Government, which is running the railways
across the country and which is the major
transport industry catering to the need of a large
number of commuters, must necessarily include thePage 16
16
protection of the right to livelihood of the
members of the respondents, apart from the
protection of Article 19(1)(g) of the Constitution
of India.
15. Mr. Ramachandran further contends that two views
are legitimately possible to construe the renewal
clause. One is that renewals of the licenses that
can be done only through the tender route and the
other is to renew the existing or pre-existing
licenses. He contends that the same can be
resolved by applying the principle of ‘contra
proferentem’, or interpretation against the
draftsman. In this connection, reliance has been
placed by the learned senior counsel upon the
decision of this Court in Bank of India & Ors. v.
K. Mohandas & Ors.4, wherein it has been held as
under:
“31. It is also a well-recognized
principle of construction of a contract
that it must be read as a whole in order
to ascertain the true meaning of its
several clauses and the words of each
4 (2009) 5 SCC 313Page 17
17
clause should be interpreted so as to
bring them into harmony with the other
provisions if that interpretation does no
violence to the meaning of which they are
naturally susceptible. [(The North
Eastern Railway Company v. L. Hastings)
1900 AC 260].
32. The fundamental position is that it
is the banks who were responsible for
formulation of the terms in the
contractual Scheme that the optees of
voluntary retirement under that Scheme
will be eligible to pension under Pension
Regulations, 1995, and, therefore, they
bear the risk of lack of clarity, if any.
It is a well-known principle of
construction of contract that if the
terms applied by one party are unclear,
an interpretation against that party is
preferred [Verba Chartarum Fortius
Accipiuntur Contra Proferentum].”
16. The learned senior counsel further contends that
the social objectives of the Policy are clearly
meant to side step the profit making objective. He
places reliance on a Constitution Bench decision
of this Court in the case of Olga Tellis v.
Bombay Municipal Corporation5, wherein it was held
that the right to life includes the right to
livelihood. In that case, the Court held as under:
5 (1985) 3 SCC 545Page 18
18
“32. As we have stated while summing up
the petitioners' case, the main plank of
their argument is that the right to life
which is guaranteed by Article 21
includes the right to livelihood and
since, they will be deprived of their
livelihood if they are evicted from their
slum and pavement dwellings, their
eviction is tantamount to deprivation of
their life and is hence unconstitutional.
For purposes of argument, we will assume
the factual correctness of the premise
that if the petitioners are evicted from
their dwellings, they will be deprived of
their livelihood. Upon that assumption,
the question which we have to consider is
whether the right to life includes the
right to livelihood. We see only one
answer to that question, namely, that it
does. The sweep of the right to life
conferred by Article 21 is wide and far
reaching. It does not mean merely that
life cannot be extinguished or taken away
as, for example, by the imposition and
execution of the death sentence, except
according to procedure established by
law. That is but one aspect of the right
to life. An equally important facet of
that right is the right to livelihood
because, no person can live without the
means of living, that is, the means of
livelihood. If the right to livelihood is
not treated as a part of the
constitutional right to life, the easiest
way of depriving a person his right to
life would be to deprive him of his means
of livelihood to the point of abrogation.
Such deprivation would not only denude
the life of its effective content and
meaningfulness but it would make life
impossible to live. And yet, suchPage 19
19
deprivation would not have to be In
accordance with the procedure established
by law, if the right to livelihood is not
regarded as a part of the right to life.
That, which alone makes it possible to
live, leave aside what makes life
livable, must be deemed to be an integral
component of the right to life. Deprive a
person of his right to livelihood and you
shall have deprived him of his life.
Indeed, that explains the massive
migration of the rural population to big
cities. They migrate because they have no
means of livelihood in the villages. The
motive force which people their desertion
of their hearths and homes in the
villages that struggle for survival, that
is, the struggle for life. So
unimpeachable is the evidence of the
nexus between life and the means of
livelihood. They have to eat to live :
Only a handful can afford the luxury of
living to eat. That they can do, namely,
eat, only if they have the means of
livelihood. That is the context in which
it was said by Douglas J. in Baksey that
the right to work is the most precious
liberty because, it sustains and enables
a man to live and the right to life is a
precious freedom. "Life", as observed by
Field, J. in Munn v. Illinois (1877) 94
U.S. 113, means something more than mere
animal existence and the inhibition
against the deprivation of life extends
to all those limits and faculties by
which life is enjoyed. This observation
was quoted with approval by this Court in
Kharak Singh v. The State of U.P.
33. Article 39(a) of the Constitution,
which is a Directive Principle of StatePage 20
20
Policy, provides that the State shall, in
particular, direct its policy towards
securing that the citizens, men and women
equally, have the right to an adequate
means of livelihood. Article 41, which is
another Directive Principle, provides,
inter alia, that the State shall, within
the limits of its economic capacity and
development, make effective provision for
securing the right to work in cases of
unemployment and of undeserved want.
Article 37 provides that the Directive
Principles, though not enforceable by any
court, are nevertheless fundamental in
the governance of the country. The
Principles contained in Articles 39(a)
and 41 must be regarded as equally
fundamental in the understanding and
interpretation of the meaning and content
of fundamental rights. If there is an
obligation upon the State to secure to
the citizens an adequate means of
livelihood and the right to work, it
would be sheer pedantry to exclude the
right to livelihood from the content of
the right to life. The State may not, by
affirmative action, be compellable to
provide adequate means of livelihood or
work to the citizens. But, any person,
who is deprived of his right to
livelihood except according to just and
fair procedure established by law, can
challenge the deprivation as offending
the right to life conferred by Article
21.”
(emphasis laid by this Court)
17. The learned senior counsel further places reliance
on a recent decision of this Court in CharuPage 21
21
Khurana v. Union of India6, wherein the above
stated principle enunciated in Olga Tellis (supra)
has been reiterated.
18. Before we advert to the contentions in detail, we
quote Justice Krishna Iyer from the case of LIC
v. D.J. Bahadur7, wherein the learned Judge has
explained what should be the guiding force for
judges when faced with matters pertaining to
social justice, as under:
“Law is no cold-blooded craft bound by
traditional techniques and formal
forceps handed down to us from the
Indo-Anglian era but a warm-blooded art,
with a bleak from the past and a tryst
with the present, deriving its soul
force from the Constitution enacted by
the People of India. Law, as Vice
President G.S. Pathak used to emphasize
in several lectures, is a tool to
engineer a peaceful 'civil revolution'
one of the components of which is a fair
deal to the weaker human sector like the
working class. The striking social
justice values of the Constitution
impact on the interpretation of Indian
laws and to forget this essential
postulate while relying on foreign
erudition is to weaken the vital flame
of the Democratic, Socialist Republic of
6 (2015) 1 SCC 192
7 (1981) 1 SCC 315Page 22
22
India.”
19. The case of the appellants, in nutshell, is
that the railways had the right to enact the
Catering Policy, 2010. In terms of the said
Policy, only such licensees who were granted
license under the 2010 Policy were entitled to get
their contracts renewed and the same benefit could
not be extended to those licensees who were
granted license prior to the 2010 Policy.
According to the Catering Policy 2010, no
provision is made for the renewal of the existing
catering units on the expiry of the term of the
licenses. The renewal of the licenses of the
licensee under para 16 of the Policy would apply
only to licensees allotted under the Catering
Policy 2010. The appellants have further submitted
that the renewals of the licenses by the Zonal
Railways upto 2013 was only meant to operate as a
temporary arrangement till the bidding and
allocation process was finally completed.Page 23
23
20. We are unable to agree with the contention
advanced on behalf of the Appellants. The Railway
Board issued Commercial Circular No. 37 dated
09.08.2010, which contained the following
instructions:
“1. Transfer of License Units:
d. Zonal railways should renew all
agreements which have expired or are due for
expiry in the next 6 months by giving an
extension, subject to a maximum extension of
six months from the date of issue of
Catering Policy, 2010.”
This circular clarifies that the renewal of the
license is required to be granted to all the
existing licensees of the Minor Units as per
clauses 16 and 17 of the Catering Policy, 2010.
It also becomes clear that the existing licensees
need not be included in the tender process.
Circular dated 23.08.2011 issued by the Chief
Commercial Manager of South Central Railway
directed all the Divisional Commercial Managers
and other subordinate officers of the South
Central Railway to confirm that the tenure of allPage 24
24
GMUs and SMUs at “A1”, “A” and “B” category
stations shall be renewed after every 3 years on
their satisfactory performance and payment of all
dues and arrears as per the 2010 Policy. In view
of the said circular, catering licenses of all
the members of the respondent Association were
renewed till July 2013. On this aspect of the
case, the learned single Judge of the High Court
has held as under:
“While the 2010 Policy proper has not
envisaged renewal of the existing
licenses for a period not exceeding six
months, the Immediate Operative
Instructions issued in commercial
circular no. 37/2010 dated 09.08.2010
has directed the Zonal Railways to
renew the licenses for a maximum period
of six months from the date of issue of
the 2010 Policy. If the 2010 Policy is
understood as providing renewals only
in respect of the licenses issued under
the said Policy, there was no reason
why the respondent No. 3 has not called
for tenders on the expiry of six months
period from the date of coming into
force of the 2010 Policy. Instead of
calling for tenders, the respondent
No.3 has renewed all the GMU and SMU
licenses for a period of three years in
terms of paras 16.1.3 and 16.2.1 of the
2010 Policy. This was done even before
Para 16.3 was amended. HavingPage 25
25
understood the 2010 Policy in its true
spirit even before the amendment of
Para 16.3, it is incomprehensible that
respondent no.3 projects the said
policy in a different light by seeking
to give it an interpretation which runs
contrary to its plain language. Nowhere
in the 2010 Policy, the licensees are
classified into two categories, namely,
those who were granted licenses prior
to the commencement of the 2010 Policy
and those who were granted licenses
after the said Policy. On the contrary,
all the GMUs and SMUs were treated
under one category. Irrespective of
whether the licenses were granted by
the Railways prior to 2005 or by the
IRCTC from 2005 and by the Indian
Railways after 2010, renewal of
licenses is envisaged for all these
categories of licensees subject to
their fulfillment of the three
requirements as referred to
hereinbefore.”
(emphasis laid by this Court)
The findings of the learned single Judge have been
upheld by the Division Bench and we do find any
reason to interfere with the same. Article 14 of
the Constitution of India mandates that state
action must not be arbitrary and discriminatory. It
must also not be guided by any extraneous
considerations which are antithetical to equality.
A three Judge Bench of this Court in the case ofPage 26
26
R.D. Shetty v. International Airport Authority8 held
as under:
“21 ……It must, therefore follow as a
necessary corollary from the principle
of equality enshrined in Article 14 that
though the State is entitled to refuse
to enter into relationship with any one,
yet if it does so, it cannot arbitrarily
choose any person it likes for entering
into such relationship and discriminate
between persons similarly circumstanced,
but it must act in conformity with some
standard or principle which meets the
test of reasonableness and
non-discrimination and any departure
from such standard or principle would be
invalid unless it can be supported or
justified on some rational and
non-discriminatory ground.”
(emphasis laid by this Court)
21. India is a welfare State. Article 38 of the
Constitution of India, which is a Directive
Principle of State Policy, reads as under:
“38. State to secure a social order for
the promotion of welfare of the people.—
(1) The State shall strive to promote the
welfare of the people by securing and
protecting as effectively as it may a
social order in which justice, social,
economic and political, shall inform all
the institutions of the national life.
8 (1979) 3 SCC 489Page 27
27
(2) The State shall, in particular,
strive to minimise the inequalities in
income, and endeavour to eliminate
inequalities in status, facilities and
opportunities, not only amongst
individuals but also amongst groups of
people residing in different areas or
engaged in different vocations.”
22. It is the duty of every welfare state to generate
employment. Presently, millions of youth of the
country are unemployed. The right to livelihood is
a part of right to life, as has been held in the
case of Olga Tellis (supra). A vast majority of
the unemployed population of the country then, is
susceptible to being exploited by the rich and the
capitalists. It is the duty of the state, acting
through its instrumentalities to ensure that no
person in a vulnerable position is exploited. In
the case of People’s Union for Democratic Rights
& Ors. v. Union of India9, Bhagwati,J. lamenting
on the exploitation of the weak and the powerless
held as under:
“………The Rule of Law does not mean that the
9
(1982) 3 SCC 235Page 28
28
protection of the law must be available
only to a fortunate few or that the law
should be allowed to be prostituted by the
vested interests for protecting and
upholding the status quo under the guise of
enforcement of their civil and political
rights. The poor too have civil and
political rights and the Rule of Law is
meant for them also, though today it exists
only on paper and not in reality. If the
sugar barons and the alcohol kings have the
Fundamental Right to carry on their
business and to fatten their purses by
exploiting the consuming public, have the
'chamars' belonging to the lowest strata of
society no Fundamental Right to earn an
honest living through their sweat and toil?
………civil and political rights, priceless
and invaluable as they are for freedom and
democracy, simply do not exist for the vast
masses of our people. Large numbers of men,
women and children who constitute the bulk
of our population are today living a
sub-human existence in conditions of abject
poverty: utter grinding poverty has broken
their back and sapped their moral fibre.
They have no faith in the existing social
and economic system. What civil and
political rights are these poor and
deprived sections of humanity going to
enforce?”
23. This Court, being entrusted with the task of
being the countermajoritarian institution, is duty
bound to ensure that the rights of the downtrodden
minorities and the members of the weaker sections
of the society are not trampled upon.Page 29
29
24. One more important aspect to be taken note of
by this Court is the non governance of railway
property in the past 67 years since independence.
Though, it is a recognized principle of law that
the property of the railways is public property,
yet in reality, it is the private players and
industries that are allowed to carry on their
business for transport of raw materials from one
place to another. After the enactment of the
Railways Act, 1989, the Rail Land Development
Authority has been established under Chapter IIA
of the Act to manage the railway property by
framing policy or rules for allotment of the same
in favour of the licensees, including fixing
license fee or occupation charges in respect of
the vast extent of vacant property from which huge
revenue can be collected, which is a laudable
object to cater to the need of the public at
large. The periodical revision of license fee in
respect of such big operators has not been done byPage 30
30
the railways. Also, the Policy of not renewing the
licenses of those persons who are members of the
respondents are completely dependent on
self-earning from these small units and making
them participate in a public competition is
absolutely unfair, unreasonable and arbitrary. The
chances of such persons being deprived of their
right to livelihood is also an important factor
which has to be taken into consideration by this
Court to interpret the policy framed by the
appellants. The callous attitude as far as the
inaction on the part of the State in tackling the
problem of rising unemployment is appalling. The
situation is made worse by the handing over of
public functions to private entrepreneurs, which
then exploit the policies of the government
against the poor and downtrodden people of the
country. If the appellants under the guise of the
policy are permitted to deny renewal of licenses
in favour of the licensees, it would amount to
deprivation of their right to freedom ofPage 31
31
occupation guaranteed under Article 19(1)(g) of
the Constitution as well as the right to
livelihood, which action of the appellants would
be diametrically opposed to their constitutional
duty towards social justice as well as uplifting
the weaker sections of the society and the
unemployed youth of the country.
25. In the case of Consumer Education & Research
Center v. Union of India10 a three Judge Bench of
this Court observed as under:
“Social justice, equality and dignity of
person are cornerstones of social
democracy. The concept 'social justice'
which the Constitution of India engrafted,
consists of diverse principles essential
for the orderly growth and development of
personality of every citizen.……Social
justice is a dynamic device to mitigate
the sufferings of the poor, weak, Dalits,
Tribals and deprived sections of the
society and to elevate them to the level
of equality to live a life with dignity of
person. Social justice is not a simple or
single idea of a society but is an
essential part of complex social change to
relieve the poor etc. from handicaps,
penury to ward off distress, and to make
their life livable, for greater good of
the society at large. In other words, the
10 (1995) 3 SCC 42Page 32
32
aim of social justice is to attain
substantial degree of social, economic and
political equality, which is the
legitimate expectation. Social security,
just and humane conditions of work and
leisure to workman are part of his
meaningful right to life and to achieve
self- expression of his personality and to
enjoy the life with dignity, the State
should provide facilities and
opportunities to enable them to reach at
least minimum standard of health, economic
security and civilised living while
sharing according to the capacity, social
and cultural heritage.”
Further, in the case of Sadhuram Bansal v. Pulin
Sarkar11 this Court held as under:
“There is no ritualistic formula or any
magical charm in the concept of social
justice. All that it means is that as
between two parties if a deal is made with
one party without serious detriment to the
other, then the Court would lean in favour
of the weaker section of the society,
Social justice is the recognition of
greater good to larger number without
deprivation of accrued legal rights of
anybody. If such a thing can be done then
indeed social justice must prevail over any
technical rule. It is in response to the
felt necessities of time and situation in
order to do greater good to a larger number
even though it might detract from some
technical rule in favour of a party.”
11 (1984) 3 SCC 410Page 33
33
26. Keeping in view the evolving concept of social
justice, we allow the members of respondents who
are the licensees to continue their petty
business, especially in the absence of employment
potentiality in the country on account of
non-governance and non- implementation of the
constitutional philosophy of an egalitarian
society, which provides the opportunity to all
individuals to lead a life of dignity. The right
to life with dignity has been interpreted to be a
part of right to life by this Court in the case of
Francis Coralie Mullin v. Administrator, Union
Territory of Delhi & Ors.12 , as under:
“We think that the right to life
includes the right to live with human
dignity and all that goes along with
it, namely, the bare necessaries of
life such as adequate nutrition,
clothing and shelter and facilities for
reading, writing and expressing
one-self in diverse forms, freely
moving about and mixing and commingling
with fellow human beings. Of course,
the magnitude and content of the
components of this right would depend
upon the extent of the economic
12 (1981) 1 SCC 608
development of the country, but it
must, in any view of the matter,
include the right to the basic
necessities of life and also the right
to carry on such functions and
activities as constitute the bare
minimum expression of the human-self.”
27. Therefore, we have to hold that the
provisions of the Catering Policy, 2010 are
applicable to the concerned respondents. The
action of the railways in not granting renewals of
the licenses to the members of the respondents is
arbitrary, unreasonable, unfair and
discriminatory, and the same cannot be allowed to
sustain in law.
28. For the reasons stated supra, this Court cannot
interfere with the impugned judgment and order of
the High Court. The Civil Appeals are dismissed.
The order dated 11.04.2014 granting stay of the
impugned order shall stands vacated. We, however,
make it clear that only those licensees may be
eligible for renewal of their licenses who can
declare on affidavit that they do not have the
license of more than one shop or kiosk in theirPage 35
35
name or benami license at the railway stations
with periodical reasonable increase of license
fee. All pending applications are disposed of.
…………………………………………………J.
[V. GOPALA GOWDA]
…………………………………………………J.
[AMITAVA ROY]
New Delhi,
January 29, 2016
No comments:
Post a Comment