Calcutta High Court (Appellete Side)
M/S. Shiv Shakti Parcel Service vs Union Of India & Ors on 17 August, 2017
Author: R. K. Bag
Bench: R. K. Bag
1
17.08.2017
pb
Ct. No. 9
W. P. 17088 (W) of 2017
M/s. Shiv Shakti Parcel Service
Vs.
Union of India & Ors.
Mr. Sarder Amzad Ali,
Mr. Debrup Bhattacharjee,
Ms. Saptamita Pramanick.
....for the petitioner.
Mr. Sanajit Kumar Ghosh.
.....for the Union of India.
The petitioner has filed this writ petition challenging the
letter dated June 21, 2017 issued by the Divisional Commercial
Manager, Eastern Railway, Howrah Division (Annexure P-3 to the
writ petition).
The petitioner participated in the tender of the
respondent railway authority for leasing of 5.0 tonne space for one
compartment of FSLR(D)-II of 13021 UP Mithila Express. The petitioner was found to be the highest successful bidder by quoting a sum of Rs.15,200/-, although FSLR(D)-I is running @ of Rs.23,390/- per trip. The grievance of the petitioner is that the respondent no.6, Divisional Commercial Manager, Eastern Railway, Howrah Division issued the impugned notice calling upon 2 the petitioner to negotiate for pulling up the rate at per the level of existing freight rate of Rs.23,390/- per trip applicable to FSLR(D)- I. Mr. Ali, learned senior counsel appearing on behalf of the petitioner contends that the respondent railway authority is not permitted under paragraph 19.4 of comprehensive parcel leasing policy of the railways to negotiate with the petitioner for increasing rate which is already quoted by the petitioner for the tender. On the other hand, Mr. Ghosh, learned counsel representing the respondent railways submits that the officers of the railways can negotiate with the petitioner for increasing the price quoted by the petitioner by invoking the provision of paragraph 42.6 of the comprehensive parcel leasing policy of the railways. He further submits by referring to paragraph 26.3 of the terms and conditions incorporated in the tender notice that the present dispute must be referred to the Arbitrator and this Court cannot exercise jurisdiction under Article 226 of the Constitution in order to grant relief prayed by the petitioner. Mr. Ghosh has relied on the decision of the Supreme Court reported in (2015) 7 SCC 728 in support of his above contention.
On perusal of the impugned notice under challenge in the writ petition, I find that the petitioner is the successful bidder for quoting rate of Rs.15,200/- which is above the base price of 3 Rs.14,944/- quoted in the tender notice. The respondent no.6 has issued the impugned notice for negotiation with the petitioner for increasing the rate quoted by the petitioner and the said notice is issued in terms of paragraph 19.4 of Railway Board's FM Circular No.6 of 2014. It is relevant to quote the provision of paragraph 19.4 of the circular quoted by the respondent no.6 in the impugned notice which is as follows:-
"19.4 - In case separate tenders have been floated for two compartments of SLR of a particular train, then the two ternders can be finalized even if the highest bids in the two cases are different.
However, the difference between the two highest bids should be less than 10%."
On consideration of the provision of paragraph 19.4 of the circular quoted by the respondent no.6, I find that the said provision can be invoked only when separate tenders have been floated for two compartments of SLR of a particular train and there is need of finalization of two tenders. In the present case, nothing is on record to indicate that there is another bidder for another compartment of SLR of the same train. In the absence of another bidder in respect of another compartment of SLR of Mithila Express, the respondent no.6 cannot invoke the provision of paragraph 19.4 of the circular for negotiation with the petitioner to 4 increase the rate quoted by the petitioner in the bid. It is relevant to point out that provision of paragraph 42.6 of comprehensive parcel leasing policy quoted by learned counsel for the respondent railways has no manner of application in the present case, as the said provision can be invoked for fixation of reserve price for leasing of subsequent compartments of SLR of the same train. In my view, the respondent no.6 is not justified under the law in issuing the impugned notice for negotiation with the petitioner for increasing the rate quoted by the petitioner, particularly when the rate is above the base price notified in the tender notice.
By relying upon paragraphs 69 and 70 of "Joshi Technologies International INC v. Union of India" reported in (2015) 7 SCC 728, Mr. Ghosh submits that the dispute with regard to tender is to be referred to the arbitration as laid down in paragraph 26.3 of the terms and conditions incorporated in the tender notice. It is held by the Supreme Court in paragraph 69.2 of the said report that the High Court would refuse to exercise its discretion under Article 226 of the Constitution of India whenever a particular mode of settlement of dispute is provided in the contract. In the instant case, no contract between the respondent railway authority and the petitioner is forthcoming before the Court. Moreover, it appears from paragraph 26.3 of the terms and conditions incorporated in the tender notice that all disputes in 5 regard to implementation of the policy/ agreement with the zonal railway under parcel leasing policy will be referred to an Arbitrator nominated by the General Manager of Zonal Railway. The present dispute is not with regard to implementation of agreement/ policy issued by the respondent railway authority. The present dispute is with regard to issuance of impugned notice by the respondent no.6 without the authority of law.
In view of my above findings, I would like to hold that the ratio of "Joshi Technologies International INC v. Union of India & Ors." (supra) has no bearing on the facts of the present case. The petitioner has approached this Court by invoking jurisdiction under Article 226 of the Constitution of India as the respondent no.6 has acted without the authority of law and in excess of jurisdiction conferred on him by law. Naturally, the question does not arise for referring the present dispute to the Arbitrator as contended by learned counsel for the respondent railways.
The upshot of my above observation is that the impugned notice dated June 21, 2017 issued by the respondent no.6, Divisional Commercial Manager, Eastern Railway, Howrah Division is set aside. The respondents are directed to complete the entire exercise of finalization of tender in question as early as possible preferably within a period of 8 weeks from the date of communication of the order.
6
With the above direction, the writ application is disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties on priority basis upon compliance of necessary formalities.
(R. K. Bag, J.)