Calcutta High Court (Appellete Side)
Deepak Meghani vs Union Of India & Ors on 9 April, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
20.
09.04.2015.
Ct. No. 29.
F.B.
W.P. 5823 (W) of 2015
Deepak Meghani
-Vs.-
Union of India & Ors.
Mr. Saptansu Basu,
Mr. Shuvanil Chakraborty,
Mr. Debrup Bhattacharyya
..... For the Petitioner.
Mr. Moloy Kumar Das,
Mr. Saptarshi Roy
..... For the Respondents.
_________ Sri Saptansu Basu, learned Senior Counsel appears for the petitioner.
Affidavit-of-service filed in Court today be kept with the record.
The railway respondents are represented by Sri Moloy Kumar Das and Sri Saptarshi Roy, learned counsel.
Sri Basu has made elaborate submissions on the chequered history of this litigation. According to Sri Basu, the petitioner applied for loading and unloading of parcels ex=Kharagpur twice a week for 2 a period of three years. The tender conditions, Sri Basu argues is governed by the policy of 2006.
The petitioner complained of infrastructural facilities at Kharagpur Railway Station with regard to executing the tender work. Both the policy rate and availability of the infrustructural facilities at the designated platforms of Kharagpur railway station came up for consideration from time to time in several writ petitions filed by the petitioner before this Hon'ble Court. Several orders were passed by different Hon'ble Benches with regard to the feasibility of the petitioner carrying on the said tender work and thereby permitting him to complete the initial tender period.
Drawing the attention of this Court to the Clause for Extension of Lease, Sri Basu submits that in the light of the several orders passed by this Hon'ble Court from time to time, it cannot be alleged that the petitioner defaulted at any stage in obeying the terms of the 2006 Policy. Rather, according to learned Senior Counsel, the course of litigation from time to time and the orders passed thereon indicate in no uncertain terms that the petitioner was allowed to execute the tender work at the pre-revised rate specified under the 2006 Policy.
Learned Senior Counsel further submits that since it cannot be alleged that the petitioner violated the terms of the 2006 Policy, 3 for the reasons as argued above, under the terms of the Clause governing Extension of Lease, the petitioner is axiomatically entitled to an extension. Clause 'E' specifying the Extension of Lease goes as follows:-
"(E) Extension of Lease:
1. Extension of lease is permissible only in case of long term lease of 3 years.
2. In case of Long Term Lease, on expiry of the contract period, the same can be extended only once, by 2 more years at a lease rate of 25% more than the lumpsum leased freight rate.
3. Such extension will be subject to satisfactory performance by the lease holder, without any penalty for overloading or violation of any provision of the contract.
4. In case of expiry of contract period and non-
finalization of new contract due to administrative delays, temporary extension can be permitted by the CCM only once, for a period of 3 months".
Learned counsel further argues that the question of renewal of lease came up for scrutiny before this Court and the railways were directed to pass a speaking order and communicate their decision to the petitioner.
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By the impugned speaking order dated 13th of February, 2015, the Senior Divisional Commercial Manager, Kharagpur has declined to grant the Extension of Lease to the petitioner for another two years on the ground that the conduct of the petitioner is not in consonance with the policy of the Railway Board.
Such decision is challenged in the present writ petition. Per contra, Sri Das, learned counsel ably assisted by Sri Roy, learned counsel points out that the order impugned of the railway respondents dated 13th of February, 2015 is elaborately reasoned, clear and has taken respectful notice of the litigation initiated by the petitioner from time to time. Pointing to the contents of the order, Sri Das submits that the following reasons have been furnished by the competent authority:-
(a) That the petitioner did not execute any agreement in spite of repeated requests and in spite of several directions of the Hon'ble High Court. In the absence of a valid agreement, the petitioner was allowed to load and unload on the basis of the tender document submitted on 15th of October, 2008. The petitioner has defaulted in loading and unloading on as many as 33 occasions for the period between May, 2014 to September, 2014, thereby causing loss to the railway 5 exchequer to the tune of Rs. 15,90,039/-. The parcel rate for loading and unloading has been revised from 1st of June, 2012 and also from 1st of October, 2013 and has been implemented by the Railway Board in terms of the circular dated 9th of February, 2010. If in the event, the petitioner is allowed to continue loading and unloading operations at the old rate, railway respondents stand to lose revenue to the tune of Rs. 1,17,84,032/- in two years.
(b) The petitioner has stopped loading and unloading operations after completion of the initial period of the tender on the 16th of November, 2014.
(c) Taking notice of the fact that the petitioner has not executed any agreement, the extension clause being part of the tender document cannot be availed of by him to his benefit.
(d) After a gap of two years of cancellation of the offer the petitioner filed one writ petition after another before this Hon'ble Court and is claiming to continue loading and unloading operations ex=Kharagpur at the old rate and under the 2006 policy although both 6 the policy and the rate stood revised from time to time.
Having heard the parties and considering the rival submissions, this Court is prima facie of the opinion that the renewal Clause, inter alia, provides that the contract is subject to extension on assessment of satisfactory performance by the petitioner. This Court cannot be unmindful of the fact that without entering into any agreement with the railways and on the carefully constructed platform of a repeated lis the petitioner has attempted to serve out the initial tender period.
However, this Court must also take notice of the fact that the railway respondents are equally entitled to invoke their freedom of decision making with respect to the renewal terms keeping in mind assessment of the performance of the lease-holder and the present needs of the railway administration. In the further opinion of this Court a conjoint reading of the solemn orders passed from time to time do not fetter such decision-making qua the scope of renewal. Besides, it does not appear to be in dispute that the petitioner has stopped loading and unloading operations for nearly five months at present.
In the light of the above discussion, the prayer for interim reliefs is refused. Any step taken by the railways under the 7 impugned order dated 13th of February, 2015 shall abide by the result of the writ petition.
Let affidavit-in-opposition be filed within a period of four weeks from date, reply thereto within two weeks thereafter.
Liberty to mention thereafter.
Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Subrata Talukdar, J.)