Calcutta High Court (Appellete Side)
Harshpal Singh vs Union Of India & Ors on 3 December, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
1
03.12.2018
[04]
Suman WP 23261 (W) of 2018
Court-4
Harshpal Singh
Vs.
Union of India & Ors.
Mr. Saptarshi Roy
Mr. Debrup Bhattacharjee
...for petitioner
Mr. Ashok Kumar Chakraborty
Mr. Sanajit Kumar Ghosh
...for respondent /Railways
This writ petition has been listed under heading 'To Be Mentioned' at instance of petitioner citing urgency.
Mr. Roy, learned advocate appears on behalf of petitioner and submits, his client had tendered for utilization of one parcel van in daily operation of Udyan Aabha Toofan Express running between Howrah and Shri Ganga Nagar. His was solitary tender. He demonstrates from writ petition, reserved price for this parcel van was at Rs.2,43,504/-. He submits, this was to be second parcel van in the rake. His client offered Rs. 2,70,999/-.
By letter dated 6th August, 2018 Railways called his client for negotiation since his offer was more than 10 per cent below operating contract in respect of existing parcel van in the rake on rate of Rs.3,03,403/-. His client, in negotiation, increased his offer to Rs.2,73,550/- to remove outside limit of 10 per cent difference. 2 Yet Railways have refused to accept his offer which is why his client has impugned such refusal dated 15th November, 2018. Mr. Roy, relies on order dated 17th August, 2017 of a learned single Judge of this Court in W.P. 17088 (W) of 2017 (M/s. Shiv Shakti Parcel Service vs. Union of India & Ors.) for persuading this Court to also interfere as in that case.
Mr. Chakraborty, learned senior advocate appears on behalf of Railways. He draws attention to tender notice clause 5.2 which is set out below:-
"5.2. The Railway Administration reserves the right to decide or to reject any Tender or all Tenders without assigning any reason whatsoever and does not bind itself to accept the highest or any Tender or to assign any reason whatsoever for doing so."
He submits, this is a question of viability. Unless rate of Rs. 3,03,403/-is paid for second parcel van, to be added to the rake, it would not be viable for Railways to add it. When by reason of it not being viable his client has decided not to add second parcel van to the rake, petitioner does not have a vested right to have his tender finalized.
In M/s. Shiv Shakti Parcel Service (supra) ground of resistance by Railways was that there were disputes referable to 3 arbitration. It is in that context there was interference. Facts in this case are clearly distinguishable.
Railways' contention is accepted inspite Railways having had fixed reserve rate at Rs.2,43,504/-. Court is inclined to think viability was a factor in fixing reserve price. However, if Railways have decided they will not add second parcel van to this train as not viable on bid received, petitioner does not or cannot have a perfected right for compelling finalization of his tender. This situation must also bind Railways. They cannot hereafter resort to another tender process to deprive petitioner on viability. If it is market dynamics which causes them to have solitary bidder in petitioner who had quoted above reserve rate and removed 10 per cent difference, yet is not having his tender finalized, then Railways have decided that Udyan Aabha Toofan Express must run with one parcel van, more so because existing parcel van contractor did not bid for second parcel van when tenders were invited. Petitioner will be at liberty to agitate on self-same cause in event Railways add second parcel van to this train in future. Since affidavits were not called for, allegations contained in this writ petition cannot be deemed to be admitted by the Railways.
With above observations this writ petition is disposed of. 4 (Arindam Sinha, J.)