1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3048 OF 2002 WITH WRIT PETITION NO. 860 OF 2007 Shivkumar Rohra .. Petitioner Versus The General manager, Central Railway, CST, Mumbai & others .. Respondents Shri P. L. Bhujbal for the petitioners Shri Anand Samant for respondents CORAM: SMT. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : Reserved for Judgement on: 30/11/ 2009 Judgement declared on 17 : /02/ 2010 J U D G E M E N T (Per Mridula Bhatkar,J.) 1. The petitioner is physically handicapped and disabled 2 person. He was allotted telephone space and booth at Railway plat farm by the respondents. He has challenged the policy of the respondents in respect of charging rent @ 20% for the use of the premises with rise of 10% every year, for conducting telephone booth. The petitioner has filed another petition in 2007 for setting aside the orders dated 16.12.2004, 13.3.2007 and 16.10.2006 as well as the terms and conditions framed by the respondents pursuant to the policy of 2002. Petitioner is orthopedically handicapped person having more than 40%. disability. Ministry of Health and Family Welfare as well as Indian Institute of Physical Medicine and Rehabilitation have issued certificate in respect of petitioner being disabled more than 40%. The similar certificate was issued by the National Society for Equal Opportunity for Handicapped Person. For the purpose of his livelihood, he applied to the Department of Telecommunications, Bombay Telephones on 25 th January, 1984 and requested to allot him telephone booth. The National Society for Equal Opportunities for Handicapped gave recommendations to that effect. The respondents allotted the petitioner PCO booth at VT Railway station near platform No.1 by its letter dated 25 th January, 1986. The petitioner was given one telephone connection and thereafter two more local lines were allotted to him. The petitioner 3 being handicapped, the respondents were not recovering any rent or tax. The petitioner, from October, 2000 started STD and ISD facilities at his booth. It is contended that the respondent no. 2 issued letter dated 187.2002 and informed about imposing terms and condition as under: (a) land licence fee @ 20% of the Notified cost of the land and 10% increase every year as notified by Railway. (b) Minimum of 10% of the commission earned by PCO booth holder from MTNL, VSNL or any other authorised services provided till a new contract at the same station is finalised. (c) Payment of electric charges, water charges, Municipal Taxes etc. as fixed by the administration from time to time regularly. By the said letter, the telephone booth holders were directed to convey their acceptance within a fortnight. 3. The petitioner found those conditions harsh and not affordable, compared to his meager income . So, by his letter dated 16th 4 August, 2002, requested respondent no.2 to reconsider his case on humanitarian ground. However, respondents 1 and 2, by letter dated 11 th November, 2002, cancelled the said allotment of telephone booth of the petitioner and awarded to him, which is also challenged by the petitioner in WP No. 3048/2002. 4. Learned counsel appearing for the petitioner has submitted that the respondents’ act of cancellation of the allotment of the telephone booth amounts to denial of constitutional rights to the petitioner and violations of article 22, 14, 15 and 16 (1)(g) of the Constitution of India. It is further submitted that the profit making attitude of the respondents is grossly objectionable, and being disabled, the respondents ought to have considered the case of the petitioner on different footing. 5. Learned counsel has further submitted that today the petitioner has no option but to beg, after attaining the age of 60 years. The respondents ought to have laid down policy as per the guidelines of welfare state and therefore the petitioner has challenged the said policy of 2002. Learned counsel has pointed out the details of average income and 5 submitted that the petitioner earns Rs.10000 to 11000/- per month. It is submitted that if the petitioner is asked to pay 20% of the land price and 10% increase every year so also electricity charges, water charges, municipal tax etc, it will be difficult for the petitioner to earn his livelihood to make two ends meet. It is further submitted that opportunity was not given to the petitioner to put up his case before the concerned authorities and the decision of cancellation of allotment of telephone booth is taken unilaterally, hence it is illegal. 6. Learned counsel for the petitioner, in the course of argument, has pointed out that earlier, the Division Bench of this Court, by an order dated 3rd December, 2002 has directed the petitioner to deposit Rs. 10000/- and accordingly the petitioner has deposited Rs.10000/- and the respondents were directed that the petitioner should not be removed from the PCO booth at CST Railway station, Mumbai. He relied on the order passed by the Division bench dated 3rd February, 2003 by which the petition was admitted and the interim relief was granted. Learned counsel has further pointed out that despite the order of the High Court dated 3 rd February, 2003 the respondents have demanded the amount as per the 6 old policy which was already under consideration and stayed by the High Court. Thereafter the respondents, by letter dated 16.12.2004 demanded Rs.4,02,295.34/- as a land rent from May, 2002 till the date. Therefore the petitioner made grievance before the respondents from time to time and requested them to consider his case on humanitarian ground along with the provisions of the special legislation enacted for the disabled persons like the petitioner. The respondents, again, by letter dated 6.10.2006 demanded an amount of Rs.8,02,554/- as an outstanding against the petitioners towards the ground licence fee from 1 st May, 2002 to 7 th April, 2007 and last date for clearance was given as 7 th April, 2007. The respondents again issued a letter dated 13.3.2007 asking the petitioner why his contract shall not be terminated for the violation of the terms and conditions as he has malafide defrauded the railway. The petitioner, being aggrieved by these letters and the stand taken by the respondent railway was constrained to file the second writ petition i.e. writ petition No. 860 of 2007 to challenge the same. 7. It is necessary to mention that Writ Petition 3048/2002, was dismissed for non prosecution on 9.7.2007 and it was subsequently restored 7 by the notice of motion taken out for restoration dated 4 th August, 2007. After the order of dismissal, the respondents evicted the petitioner and the possession of the telephone booth was forcibly taken and the respondents sealed the premises. 8. Shri Samant, learned counsel appearing for the respondents- Union of India and Railway, has submitted that the petitioner is challenging the policy decision. The respondents have relied on their affidavit of Shri Kamal Jain, Senior Divisional Commercial Manager, Central Railway filed in August, 2009 opposing this writ petition 860/07. It is submitted that the petition does not survive as the possession of the PCO booth is already taken by the Railways and the petitioner is in arrears of the sum of Rs. 10,10,478/-. The learned counsel has relied on the order passed by the Division Bench of this Court on 7th February, 2006 in Writ Petition No. 6831 of 2005 filed by Railway Station Handicapped Telephone Booth Holders’ Association of Solapur Division of Central Railway. In the said petition, the Policy-2002 of the Government was challenged and the said petition was dismissed by the Division Bench of this Court. The said Association filed Special Leave petition 8990 of 2006 against the order of 8 the High Court. The SLP was dismissed on 20th April, 2007, confirming the order passed by the Division Bench. The learned counsel has submitted that the Supreme Court has upheld the Policy of 2002 of imposing rent and charging 10% commission and therefore, the order of cancellation of booth allotted to the petitioner and the demand of arrears of Rs. 10,10,478/- is legal. The petitioner has no case. Hence, the petition deserves to be dismissed. 9. Learned counsel for the respondents has further pointed out that respondent no.1 had invited tenders for allotment of telephone booth at CST Railway station and suburbs in February, 2008 and received tenders and the offer of Smt. M.A. Shugwani was accepted against the location of petitioner and the acceptance was communicated to her by letter dated 7 th July, 2008. 10. Year 1981 was declared “International Year for the physically handicapped person. In response to that, apart from the allotment of telephone booth for handicapped persons, the Railway Board also gave many concessions like rent free space, concession in the billing 9 as well as incentives. The Railway Board, by letter No.81/TG/227/I/CA(iii) dated 29 th December, 1981 chalked out a Scheme to provide space and other facilities for installation of attended type public telephone booths at railway stations to be managed by physically handicapped persons, free of cost. The petitioner, being physically handicapped having disability more than 40%, was allotted a telephone booth at CST Railway Station from the reserved quota for handicapped persons. This scheme was implemented by the Union of India and the State of Maharashtra in the year 1981 and it continued till 2002. Clause 6 and 7 of the scheme read as under: “6. While implementing this scheme certain difficulties have been encountered in the field. It has been reported that state/local authorities like Municipal Corporation in some states demand rent for small amount of space occupied by these public telephone booth proposed in public places. In some cases, in addition to the rent, other charges like electricity are also been asked for. These being significant in major cities, would naturally eat into the income of handicapped persons. P&T department is unable to offer further subsidy to meet these costs. 10 7. In order to go all out to help the handicapped to the maximum extend department (Secretary, ‘communications) has address all the chief secretaries of the State Government to issue directive sand instructions to the concerned local authorities to provide adequate facilities to take the earning of the physically handicapped adequate enough so that they really benefit from the scheme.” 11. The Scheme declared in the International Year for handicapped persons was very much advantageous for the handicapped and physically disabled persons However, in 2002, the Government of India, Ministry of Railways, laid down a policy for allotment of STD, ISD and PCO, FAX and Internet booths on the railway platform and by this policy, the Railway Board was empowered to make fresh contracts and charge licence fees. Clause 1(a) and (b) of the said policy framed by Government of India, Ministry of Railways read as under: 1(a) the party agrees to pay land licence fee @20% of the notified cost of the land price prevailing at a particular station and 10% increase every year as notified by the Railway and a 11 minimum of 10% of the commission earned by them from MTNL, BSNL or any other authorised service provider, etc. till a new contract at the same station as per New Policy for fresh allotment (2002) is finalised. After a new contract is finalised, the rate of commission would be 10% or the rate accepted in the said new contract whichever is higher. (b) As per the agreement with STD/\.ISD OCO booth holder,s the licensee shall pay in addition to licence fee, other charges such as electric current, watter consumption, municipal taxes, etc. as fixed by the administration from time to time regularly.” 12. By this Policy-2002, concessions given to the physically handicapped and disabled persons were withdrawn and they were treated at par with the normal and physically able persons and therefore, the said policy was challenged by the Railway Station Handicapped Telephone Booth Holders’ Association of Solapur Division of Central Railway before the High Court in Writ petition No. 6831 of 2005 . The Division Bench of this Court presided over by Mr. F.I.Rebello & Dr. D.Y. Chandrachud, JJ, observed that the case of the petitioners was not fit to exercise 12 extraordinary jurisdiction and rejected the petition by order dated dated 7 th February, 2006. The concluding para of the said order reads as under: “Considering the above, we do not think that this is a fit case for this court to exercise its extra ordinary jurisdiction. The petitioners, if they seek to run the telephone booth, will have to pay the charges as levied for handicapped persons by the railways and comply with other requirements which they are called upon in which event their contract would be extended upto 27.4.2007. The handicapped booth holders are given two months time from today to pay the outgoings and enter into agreement with the respondents. With the above observations, the order of status quo granted earlier stands vacated. Petition rejected.” 13. This order was challenged by the said Association in SLP 8990 of 2006. In the SLP the Hon’ble Supreme, by its order dated 20 th April, 2007, confirmed the order passed by the High Court. While confirming the said order, the Supreme Court has held as follows: 13 “We see no infirmity in the order passed by the High Court whereby it is stated that a policy decision was taken by the respondents under which handicapped persons were required 10 of the charges. In our opinion, the policy cannot be said to be arbitrary, discriminatory or ultra virus of the provisions of the Constitution or of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Hence, the special leave petition is dismissed.” 14. The order passed by the Hon’ble Supreme Court upholding the policy-2002 is binding on this Court and this Court cannot take view contrary to decision of the Hon’ble Supreme Court. Learned counsel for the petitioner, while interpreting the order passed in SLP, submitted that the Supreme Court, in its order has dealt only with the issue of 10% charges and has not considered 20% lease rent and yearly increase @ 10% of it and therefore, the said issue is still open and needs to be decided by this Bench. 15. Chapter VII of the Persons with Disabilities (Equal 14 Opportunities, Protection of Rights and Full Participation) Act, 1995 lays down affirmative action on the part of the State which is consistent with the guiding principles of the welfare state. Our attention was drawn to Section 43 under Chapter VII of said said Act, which reads as follows: 43. Schemes for preferential allotment of land for certain purposes:- The appropriate Government and local authorities shall by notification frame scheme in favor of persons with disabilities, for the preferential allotment of land at concessional rates for- (a) house (b) setting up business; (c) setting up of special recreation centres; (d) establishment of special schools; (e) establishment of research centres; (f) establishment of factories by entrepreneurs with disabilities. 16. Pursuant to the Scheme framed in response to the International Years for the Handicapped and Disabled Persons and the said Act of 1995, spaces were made available at concessional rates and 15 facilities were provided free of charge to the physically handicapped persons by the railways. The respondents have kept reserved quota for the allotment of telephone booths to the disabled and physically handicapped persons. We have earlier elaborately discussed the scheme of 1981 and highlighted the policy of 2002. The Union of India by changed policy of 2002 decided to charge such PCO booth holders. Albeit our all sympathy to the aggrieved petitioner, we are unable to appreciate the submissions of the learned counsel that the Supreme Court has left the issue open about the said policy. We do not find any substance in the arguments advanced by learned counsel for the petitioner that the Supreme Court upheld the policy in segment and not in its entirety. We do not find any such rider or reservation in the decision of the Supreme Court as interpreted by learned counsel for the petitioner. Therefore, we cannot go beyond the order passed by the Supreme Court. In our opinion, there is no substance in the petition. In the result, the petition is dismissed. (MRS. MRIDULA BHATKAR, J.) (SMT.RANJANA DESAI, J.) jpc/-