Pandu Railway Bazar Committee vs Union Of India And 4 Ors

(1) Heard Mr. K. Paul, learned counsel for the petitioner as well as Mr. S. Chakraborty, learned Standing Counsel, N.F. Railway.

(2) The petitioner in this writ petition is the Pandu Railway Bazaar Committee which is stated to be a registered association of various licenced plot holders under the N.F. Railway at Pandu, Guwahati and it is claimed that the members of the Association are having shops on their respective plot allotted by the Railway on licence basis, further claiming that the parties are in occupation of such shops for last several decades. The grievance of the petitioner in the present writ petition is that when their association members wanted to deposit the licence fees for the month of April, 2018 for the following year, the authorities of the N.F. Railway refused to accept the same on the ground that their members would have to pay conservancy cess charge @ Rs.317/- from 01.04.2006 to 30.06.2012 and @ Rs.523/-month from 01.07.2012 to 30.06.2016. The learned counsel for the petitioner submits that various members of the petitioner's Association had been paying conservancy cess charge @ Rs.20/- per month for the period of demand i.e. from the year 1999 till March 2013. Hence, the retrospective demand of conservancy cess @ Rs.317/- from 01.06.2006 till 30.06.2012 and Rs.523/- per month with effect from 01.07.2012 to 30.06.2016, is in challenge in the present writ petition.

(3) It is submitted by the learned counsel for the petitioner that as the retrospective demand for conservancy cess was first made on 26.07.2013 without bringing to the notice of the members of the petitioner's Association about any notification by the N.F. Railway for levying conservancy cess charge for Rs.317/- and Rs. 523/- per month as indicated above, it is submitted that the demand by the N.F. Railway for enhancing conservancy cess charge is not sustainable.

(4) Hence, in terms of the writ petition, the learned counsel for the petitioner has prayed for setting aside and quashing of the impugned notice issued by the Railway on 26.07.2013 and for other notices for recovery of conservancy cess charges and for prohibiting the Railway authorities from making any demand in respect of conservancy cess charge from the members of the petitioner association and for a direction to the N.F. Railway to accept the licence fee from the members of the petitioner association without insisting upon payment of the conservancy cess charges.

(5) It is further submitted that by virtue of interim order dated 12.09.2014 passed in this writ petition, the members of the petitioner association had been paying conservancy cess prospectively from 26.07.2013 and therefore, it is submitted that if this Court upholds the power of the Railway for requiring the conservancy cess, it should be applied prospectively from 26.07.2013 when the rates were first notified to the petitioner. In this connection by referring to the case of Gulf Goans Hotel Cooperative Limited and another Vs. Union of India and others, (2014) 10 SCC 673, it is submitted that assuming that the said notification No. F(X) 1/95/1/1 dated 31.05.2006 and notification No. F(X) 1/95/1/1 dated 16.07.2012 by which conservancy cess @ Rs.317/- and thereafter @ Rs.523/- was prescribed is accepted for the sake of argument to be a notification, but for such notification to be valid and operative, it is required that such notification must have been promulgated or published in the Official Gazette.

(6) The relevant para 18 of Gulf Goans Hotel Cooperative Limited (supra) is quoted herein below:

It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan[12] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed :- "Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man."

(7) Per contra, Mr. S. Chakraborty, learned Standing Counsel, N.F. Railway has submitted that the legality of the aforesaid 2(two) notifications dated 31.05.2006 and 16.07.2012 has not been questioned in the present writ petition and the petitioners has merely challenged the demand made vide letter dated 26.07.2013 for conservancy cess charge. By referring to the notification o 31.05.2006 annexed in Annexure-8 to the affidavit-in-opposition, it is submitted that with effect from 01.06.2006, Shop-keepers, Tailors, Butchers, Dhobies, etc. in Railway colonies was notified at Rs.317/-, which was enhanced to Rs.523/- with effect from 01.07.2012. by referring to the RTI reply which is annexed in the writ petition, it is submitted that the said RTI reply dated 30.08.2013 ought not to be read in isolation without the nature of RTI query being brought on record and in this connection, relying on the letter No. H/ 3/ Sanitation/ 14 dated 24.12.2014 (Annexure-C to the affidavit-in-opposition), it is submitted that the competent authority being the Sr. DMO/ H & FW/ CH/ MLG had provided a letter by virtue of which it was clarified that the Railway was providing conservancy services at Pandu Bazaar area by providing sweeping of the area, cleaning of drains and lifting of garbage from dustbins and accordingly, it was submitted that the N.F. Railway was providing conservancy services to the entire Pandy Bazaar locality and therefore, if the members of the petitioner association had their shops in the area they are required to pay the conservancy cess as per the notification.

(8) It is also submitted that as the said 2(two) notifications are not put to challenge, the N.F. Railways in their affidavit have not taken any stand on the said point.

(9) The learned Standing Counsel for the N.F. Railway has submitted that merely because the Railway had not collected the conservancy cess charge in terms of the notification dated 31.05.2006 and 16.07.2012 at the relevant time but their power to levy and collect/ realize such charges still survives and therefore, the levy and collection of conservancy cess charges from the date of effect of the notification, cannot be questioned by the petitioner.

(10) Having considered the submissions made by the learned counsel for both sides, it is seen that as per the notification dated 31.05.2006, the conservancy cess charge of Rs.317/- per month had come into effect from 01.06.2006 and in terms of the notification dated 16.07.2012, the enhanced charge of Rs.523/- as provided in the said notification had come into effect from 01.07.2012 till 30.06.2016 and it is mentioned therein that thereafter, the same would be taken up for review. Therefore, in the absence of any challenge to the said 2(two) notifications, this Court is of the view that the challenge only to the levy/ demand such conservancy cess charge would not be maintainable.

(11) Nonetheless, on the submissions made by the learned counsel for the petitioner that the enhancement of the conservancy cess charge was never brought to the notice of the members of the petitioner association, this Court is inclined to permit the persons aggrieved by the levy of such conservancy cess charges to submit their individual representation before the Senior Divisional Engineer/ C, N.F. Railway, who is stated by the learned Standing Counsel for N.F. Railway to be the competent authority of the N.F. Railway for apprising their authorities about the individual grievances against such levy, which may be done within a period of 15(fifteen) days from today and it is provided that if such representation are submitted before the Senior Divisional Engineer/ C, N.F. Railway, and the said authority shall examine the individual objection raised by the petitioner and pass orders thereon within a period of 1(one) month from the day of receipt of such representation.

(12) With the aforesaid liberty and without interfering with the levy of conservancy cess charge in the present writ petition, this writ petition stands closed.