Calcutta High Court (Appellete Side)
Bestways Transport (India) Pvt. Ltd. & ... vs Union Of India & Ors on 10 September, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1 10.09.2014
SL 5.
(KB) W.P. 11592(W) of 2011
+
CAN 6579 of 2013
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CAN 7845 of 2014
+
CAN 7737 of 2014
Bestways Transport (India) Pvt. Ltd. & Ors.
-vs-
Union of India & Ors.
Mr. Shuvanil Chakraborty, ..... for the petitioner.
Mr. Ashoke Kumar Chakraborty, Mr. Saptarshi Roy ..... for the Central Railway.
Mr. Partha Sarathi Basu, ..... for the South-Eastern Railway. By consent of parties the applications being CAN 6579 of 2013, CAN 7845 of 2014 and CAN 7737 of 2014 and the main writ application are taken up for final hearing.
Mr. Shuvanil Chakraborty, learned advocate appearing for the petitioners submits that the petitioners conduct business of transportation of goods through parcel vans in different trains and that on 26th June, 2008 they entered into an agreement with the railways for leasing of 2 25 tons of parcel bags in Train No. 2129/2130. The agreement was for a three year period and it carried a clause to the effect that the lease may be extended only once for a further period of two years at a lease rate of 25% more than the lumpsum lease freight rate subject to satisfactory performance by the lease-holders. The said lease agreement lapsed on 2nd July, 2011 and the petitioners approached the competent authority for extension of the agreement for a further period of two years. As the said prayer was not considered by the competent authority, the petitioners were constrained to approach this Court through an earlier writ application being W.P. 10508(W) of 2011 and the same was disposed of on 7th July, 2011 with a direction upon the railways to consider the petitioners' claim and to take a decision. A direction was also issued that till such decision is taken by the railways, the existing arrangement should continue. Subsequent thereto, the petitioner's claim was rejected by an order dated 13th July, 2011. Challenging denial of extension of the lease period, the petitioners preferred the instant writ application, inter alia, praying for extension of the lease agreement for a further period of two years in terms of the initial agreement. In this writ application, an 3 interim order was passed on 19th July, 2011 and that has been extended from time to time and is continuing till date.
The application being CAN 6579 of 2013 has been preferred by the railways, inter alia, praying for modification of the interim order dated 19th July, 2011.
The application being CAN 7845 of 2014 has been preferred by the writ petitioners, inter alia, praying for a direction upon the railway authorities to consider the representation dated 25th March, 2014.
The application being CAN 7737 of 2014 has been preferred by the railways praying for expeditious disposal of the writ application.
Mr. Chakraborty places reliance upon the comprehensive parcel leasing policy(hereinafter referred to as the said policy) and draws the attention of this Court to Clause-"E" of the said policy.
The said Clause-"E" runs as follows:-
"(E) 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 4 permitted by the CCM only once, for a period of 3 months."
According to Mr. Chakraborty, in terms of Clause-
"E" of the said policy the railways can extend a long term lease for a period of three years and for a further period of two years and in case of expiry of the contract period and non-finalization of new contract, the railways can grant temporary extension only once for a further period of three months.
There is no dispute to the effect that the lease agreement was in fact extended for a period of two years and subsequent thereto for a further period of three months.
Mr. Chakraborty has also filed an affidavit before this Court by which the petitioners have undertaken to withdraw operation as soon as the railways float and/or publish a new tender in terms of the above quoted Clause- "E".
Mr. Ashoke Kumar Chakraborty, learned Senior Counsel appears on behalf of the Central Railways and Mr. Partha Sarathi Basu, learned Senior Counsel appears for the South-Eastern Railway.
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Mr. Ashoke Kumar Chakraborty, learned Senior Counsel appearing for the Central Railway submits that the writ application was preferred, inter alia, praying for leasing of the parcel van in Train No. 2129/2130 Pure- Shalimar Pune Azad Hind Express on round trip basis for a further period two years upon payment of 25% more than the lumpsum leased freight rate as per Clause 20.1 of the lease agreement.
Thus according to Mr. Chakraborty, the writ application has become infructuous since the said period of two years extension is already over.
Mr. Chakraborty relies upon an unreported decision delivered in the case of Union of India & Ors. -vs- Esquire Express Courier Services & Anr.
Mr. Basu, learned Senior Counsel appearing for the South-Eastern Railways submits that in terms of the agreement the petitioners have continued for the initial period of lease for three years and the extended period of lease for a period of two years and thereafter for three months and that as such the petitioners cannot claim for any further extension inasmuch as there is no such provision towards further extension of the lease in terms of the initial agreement.
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I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
The undisputed facts are that in terms of an agreement the petitioners have been allowed to continue the business initially for a period of three years and also for an extended period of two years and thereafter for a period of three months.
In such circumstances, as the writ application itself was preferred with a prayer towards extension of the period of lease for a period of two years and as the petitioners have already enjoyed such extension and as the said period is already over and as the petitioners have also enjoyed a further extension for a period of three months in terms of the said agreement, the petitioners cannot continue any further with the business pertaining to which the initial lease agreement was entered into.
Accordingly, the writ application and the connected applications being CAN 6579 of 2013, CAN 7845 of 2014 and CAN 7737 of 2014 are dismissed.
Urgent Photostat certified copy of this order, if applied for, be handed over to the parties on compliance of all necessary formalities.
7(Tapabrata Chakraborty, J.)