Civil Revision No. 6419 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6419 of 2007 (O&M) Date of Order: 26.10.2009 Union of India ....Petitioner Versus Smt. Nandini Bharadwaj ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Nitin Kumar,Advocate for the petitioner. Mr. Avnish Mittal, Advocate for the respondent. RAJIVE BHALLA, J (Oral). The Union of India challenges an order dated 03.08.2007, passed by the Additional District Judge (Fast Track Court), Ambala, setting aside the order dated 10.10.2005, pased by the Civil Judge (Junior Division), Ambala. The plaintiff-respondent is a lady who was allotted a site measuring 5' x 6' at Railway Station, Ambala Cantt, on 09.01.1999, for running STD/PCO booth. The allotment was renewed from time to time and eventually vide letter dated 07.06.2005, she was asked to pay 100% commission with effect from 01.06.2005, as a condition for renewal of the licence. The plaintiff-respondent filed a suit for declaration praying that the letter dated 07.06.2005 is null and void. She also filed an application for grant of temporary injunction to restrain the petitioner from claiming 100% commission instead of the existing 25%. Vide order dated 10.10.2005, the Civil Judge (Junior Civil Revision No. 6419 of 2007 (O&M) -2- Division), Ambala, dismissed the application for temporary injunction. The appellate court, however, accepted the appeal filed by the respondent and directed that during the pendency of the suit, the respondent would pay 50% of the commission earned as licence fee for use and occupation of the STD/PCO booth. Counsel for the petitioner submits that as the letter dated 07.06.2005 is based upon a policy framed by the Railways, the first appellate court had no jurisdiction to modify the policy and grant an interim injunction. It is submitted that it is no part of the jurisdiction of a civil court to vary or modify a policy and, therefore, the revision petition be accepted and the order dated 03.08.2007, passed by the first appellate court be set aside. Counsel for the respondent, on the other hand, submits that the policy framed by the Railways and a similar letter, demanding 102% commission, came up for consideration before the High Court of Delhi in W.P.(C) No.18014/2005 and C.M.No.11633 of 2005, titled as C.P.Mittal v. Union of India and another, while considering the validity of commission, the High Court on 03.09.2007 has set aside the demand and directed the railways to continue with the existing licenses on the basis of the minimum 10% commission. I have considered the arguments advanced by counsel for the parties, perused the order passed by the first appellate court and also going through the judgment passed by the High Court of Delhi. Counsel for the petitioner does not deny that the dispute before the High Court of Delhi has a significant bearing on the present controversy. I find no reason to record an opinion different from the view adopted by the High Court of Delhi. It would, Civil Revision No. 6419 of 2007 (O&M) -3- therefore, be relevant to reproduce the relevant extract:- 29. No material was adduced before the court, nor was it even suggested that the petitioners had improved themselves to such an extent that their bargaining power approximated, if not equalled, the second respondent. In the above circumstances, I have no manner of doubt that the condition by which they have been asked to part with 100% of the commission (even if a charitable view is taken, that too would result in increase of the existing commission, by 100%) is unconscionable and arbitrary. The plea of uniform application of a non- discriminatory principle, in my opinion, sounds hollow, as it affronts the equality clause; it treats those who are facially unequals with equals. The condition is best exemplified in the following quotation from Anatole France: ``The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.'` 30. In view of the above conclusions, these petitions have to succeed. The respondents are directed not to enhance the commission payable by the petitioners on the basis of the policy dated 14-5- 2004, by equating the rate of commission with the highest paid by others in the vicinity. The Civil Revision No. 6419 of 2007 (O&M) -4- impugned orders demanding enhanced commission, are therefore, set aside. The second respondent is directed to continue with the existing licenses on the basis of the minimum 10% commission. This does not, however, preclude it from individually considering the facts of each petitioner, and, after negotiating with them arrive at mutually acceptable terms, based upon the levels of commission and concessions enjoyed from the MTNL/ telecom company. 31. The writ petitions and all accompanying applications are allowed in the above terms. The respondents are directed to pay costs quantified at Rs. 3000/- for each set; each petitioner shall be paid the same within six weeks. It is, therefore, apparent that the first appellate court did not commit any error of jurisdiction in staying the operation of the letter dated 07.06.2005 while directing the respondent to pay commission @ 50% . In view of what has been stated hereinabove, the revision petition is dismissed. October 26, 2009 (RAJIVE BHALLA) nt JUDGE