Calcutta High Court (Appellete Side)
M/S. S.G. Traders & Anr vs Union Of India & Ors on 5 August, 2010
Author: Harish Tandon
Bench: Pinaki Chandra Ghose, Harish Tandon
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Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
THE HON'BLE JUSTICE PINAKI CHANDRA GHOSE
&
THE HON'BLE JUSTICE HARISH TANDON
AST NO. 88 OF 2010
ASTA NO. 74 OF 2010
(Arising out of WP No. 827(W) OF 2010)
M/s. S.G. Traders & Anr.
Versus
Union of India & Ors.
For the petitioners : Mr. Bidyut Kiran Mukherjee, Sr. Adv.,
Mr. Lakshmi Kanta Pal,
Mr. Ranjan Kali,
Mr. Bandhu Brata Bhunia.
For the Opposite Party : Mr. Jayanta Banerjee,
Ms. Soma Roychowdhury.
Judgment on : 05.08.2010
HARISH TANDON, J.:
This appeal arises from the judgment and order dated March 9, 2010 passed by the Hon'ble First Court disposing of the writ petition being WP no. 827(w) of 2010.
The appellant/writ petitioner participated in a tender floated by the respondent authorities for leasing a parcel space in Chennai Mail being 2603 UP/2839 UP from Howrah to Chennai and 2 was a successful tenderer. An agreement for lease was executed on March 7, 2007 in respect thereof and the salient feature as would emanate therefrom are reproduced below :
1.1 Railway Administration will provide four tones parcel space to the leaseholder in (Ist compartment of front Brakevan/IInd compartment of front Brakevan/Ist compartment of rear Brakevan/Assistant Guard's compartment/Parcel van) for the transportation of parcel traffic on six days except Monday (days of leasing i.e. daily/weekly/bi-weekly etc.) by train no. 2603 from Howrah to Chennai with effect from 11.3.2007 (date/month/year) for a period of three years.
1.2 The guaranteed supply of Brake Vans/Parcel Vans will be in normal circumstances, in unavoidable circumstances or operational exigencies, Railway shall not be bound to fulfill its commitment. In such circumstances, lumpsum leased freight of that day will be adjusted for next day/next loading.
1.3 Railway administration shall not give guarantee to supply any specific type of coaching vehicle.
In case of non-availability of VPH having carrying capacity of 25 tonnes, the Railway administration may supply 18 tonnes VP or VPU.
3.1 The contract for leasing will commence with effect from 11.3.2007 (date/month/year) and it will remain valid up to 10.3.2010 (date/month/year) for a period of three years. The lumpsum leased freight payable for leasing of four tones parcel space in the (Ist compartment of front Brakevan/IInd compartment of front Brakevan/one compartment of rear Brakevan/Assistant Guard's compartment/Parcel van) by train no. 2603 from Howrah shall be Rs. 13,341/-for each single journey.
13.15 It will be the responsibility of leaseholder to ensure that total weight of consignments loaded parcel space is not beyond the permissible carrying capacity of vehicle leased out to 3 him between any leg of its journey penalty for overloading will be imposed as per Para 15.0.
15.0 Overloading :
15.1 weight of each individual package is not required to be mentioned on the package. Only the total weight of consignment in the SLR/VP would be checked.
15.4 In a SLR, weight of the consignment should be checked for each 4 Tonne compartment separately, and it must be within permissible limits for each compartment. Under loading in one 4 Tonne compartment will not mean that the other 4 Tonne compartment can be over loaded. In all such cases, the over loaded compartment will attract penalty as mentioned below.
15.5 Tolerances provided for as also penalty for overloading of entire consignment in 4 Tonne SLR compartment, 1 Tonne Asstt. Guard cabin or Parcel Van will be as follows :
Overloading Charge/Penalty
(i) Up to 3% Normal lumpsum leased freight or the excess weight
only, no penalty.
(ii) > 3% up to Normal lumpsum leased freight for the excess
5% weight as freight charges. Penalty of 6 times
Rajdhani freight for the entire amount of excess
weight.
(iii) > 5% (a) Normal lumpsum leased freight for the excess
weight as freight charges. Penalty of 6 times
Rajdhani freight for the entire amount of excess
weight + Rs. 5000 for each of first 3 occasions.
(b) Cancellation of lease for 4th default in addition
to penalty as mentioned at (a) above.
16.1 Leaseholder shall be responsible for unloading his consignment from the leased SLR/Asstt.
Guard Cabin/VP at the station where his lease terminates.
20.0 Extension to lease contract :
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20.1 Extension of lease is permissible only in case of long term lease of 3 years wherein the same can be extended only once, by 2 more years at a lease rate of 25% more than the lumpsum leased freight rate subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract.
Pursuant to such agreement and in furtherance thereof the writ petitioner /appellant was awarded a parcel space for 4 mt. tons as enumerated in the said lease agreement. The said lease agreement was agreed to commence on and from March 11, 2007 and duration whereof was stipulated for a period of three years thereby ending on March 10, 2010. On September 10, 2009 the writ petitioner/appellant applied for extension of the said agreement for a further period of two years commencing from March 11, 2010 to March 10, 2012.
Amidst pendency of the aforesaid application for seeking extension of the period, the respondent authorities issued a notice inviting tender for leasing the parcel space in respect of Howrah-Chennai Mail for 4 mt. ton. Since no action was taken by the respondent authorities in relation to the said extension for a period stipulated in the said agreement for lease and also issuance of a notice inviting tender in respect of the subject matter of the said lease by the respondent authorities, the writ petitioner/appellant filed the instant writ application before this Hon'ble court praying inter alia :
A. A writ in the nature of Mandamus commanding the respondents, their agents and/or their servants to forthwith cancel and/or set aside and/or withdraw and/or rescind the impugned Tender Notice dated 17th December, 2009 whereby and whereunder the respondents are inviting tenders for Train no. 2839 UP Howrah-Chennai Mail for awarding 4 M.T rear SLR 5 which is occupying by the petitioners since 7th March, 2007 and further commanding the respondents and/or their agents and/or their servants to forthwith grant extension of 2 more years for the period from 11th March, 2010 to 10th March, 2012 of the said train in terms of the clause 20.1 arrived at by and between the petitioners and the Sr. Divisional Commercial Manager, South Eastern Railway.
B. A writ in the nature of Certiorari direction the respondents, their agents and/or their servants to transmit to this Hon'ble Court the records of the entire proceeding including the Tender Notice dated 17th December, 2009 whereby and whereunder the respondents are inviting tenders for Train no. 2839 UP Howrah-Chennai Mail for awarding 4 M.T. rear SLR which is occupying by the petitioners since 7th March, 2007 and all other records and documents culminating thereto so that conscionable justice may be administered by quashing the same. C. A writ in the nature of prohibition prohibiting the respondents, their agents and/or their servants from taking any step and/or further steps pursuant to the said Tender Notice dated 17th December 2009 in so far as its relating to Train No. 2839 UP Howrah- Chennai Mail. D. Rule NISI in terms of prayers (A), (B) and (C) above.
E. Ad-interim order of injunction, restraining the respondents their agents and/or their servants from taking any steps to the said Tender Notice dated 17th December 2009 in so far as it relates to Train no. 2839 UP Howrah-Chennai Mail is concerned and further directing the respondents, their agents and/or their servants to grant extension of 2 more years of the existing award for the period from 11th March, 2010 to 10th March, 2012 in Train No. 2830 UP Howrah-Chennai Mail in 4 M.T. rear SLR.6
As and by way of an interim order so passed on January 19, 2010, the respondent authorities were directed not to create any third party right in respect of the item no. 1 to the said notice inviting tender (Chennai Mail) dated 17th December 2009 during the pendency of the said application.
Mr. Bidyut Kiran Mukherjee, learned Senior Advocate appearing for the writ petitioner /appellant submitted that clause 20.1 of the said lease agreement dated March 7, 2007 provides that the extension of lease is permissible only in case of a long term lease of three years wherein the same can be extended only once by 2 more years at a lease rate of 25% more than the lump sum leased freight rate subject to the satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract. Mr. Mukherjee further contended that the Government of India, Ministry of Railway (Railway Board) have issued a Comprehensive Parcel Leasing Policy dated 28.3.06 for leasing of a parcel space in the brake vans and clause E of the said policy categorically stipulates the extension of a lease as quoted in verbatim hereunder :
"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."7
Mr. Mukherjee further submitted that the aforesaid policy issued by the Government of India, Ministry of Railway (Railway Board) should be strictly followed and/or adhered to by the respondent authorities and the writ petitioner is entitled to enjoy the benefit of such policy. In support of such contention Mr. Mukherjee referred decisions namely Union of India Vs. M/s. Anglo Afghan Agencies etc. reported in AIR 1968 SC 718 and Home Secretary, UT of Chandigarh & Anr. Vs. Darshjit Singh Grewal & Ors. reported in (1993) 4 SCC 25.
Another point raised by Mr. Mukherjee, learned Senior Advocate before us that in a similarly circumstanced situation the extension of the period has been accorded to others and as such the writ petitioner/appellant cannot be treated discriminatory. In support therein Mr. Mukherjee, learned Senior Advocate relied upon judgments of the Apex Court in State Bank of Haryana & Ors. Vs. Gurcharan Singh & Ors. reported in (2004) 12 Supreme Court Cases 540 and M/s. Jain Exports Pvt. Ltd. & Anr. Vs. Union of India & Ors. reported in AIR 1991 Supreme Court 1721.
Mr. Jayanta Banerjee, ld. Advocate appearing for the respondent authorities refuted the contention of Mr. Mukherjee, ld. Senior Advocate and contended that neither the clause of extension as incorporated in the said lease agreement nor the clause for extension of lease as envisaged under the comprehensive Parcel Leasing Policy, does create an unbrindled right upon the writ petitioner/appellant to have the said lease agreement extended for a further period of two years. He further submitted that the word used in clause for extension is "permissible" which does not imply that the extension is to be accorded by the respondent authorities as and when sought for, 8 but left the discretion upon the respondent authorities to permit or not to permit such extension. He further submitted that such extension is subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract. Mr. Banerjee referred and placed before us a letter dated 13th January 2010 issued in relation to an application dated September 10, 2009 whereby an extension of the lease agreement was sought for by the writ petitioner/appellant and contends that the respondent authorities denied the said extension for the reason that the writ petitioner/appellant have overloaded the lease space on 11.10.08. Mr. Banerjee further contended that there is no pleading as to discriminatory act on the part of the respondent authorities in the said writ application and in absence of a specific pleading the court should not grant relief on the ground of discrimination.
Having considered the submissions of the respective Counsels it appears that the lease agreement dated March 7, 2007 was for a period of three years. Clause 20.1 of the said lease agreement specifically provides the extension being "permissible" only once for two more years at a lease rate of 25% more than the lumpsum leased freight subject to the satisfactory performance by the lease holder and without any penalty for overloading or violation of any provision of contract. The respondent authorities by a letter dated 11.10.2008 recorded the overloading by the writ petitioner and put a caution that the steps including a step for termination of the agreement would be taken in case of a recurrence of such overloading by the writ petitioner.
The language used in the clause for extension implies that the same is within the discretion of the respondent authorities subject, however, to the stipulation and/or restrictions imposed therein. Such clause does not confer a right to have the extension automatically upon mere asking. 9 As has been pointed out by Mr. Banerjee the respondent authorities by a letter dated 13th January 2010 denied the said extension. Furthermore, the respondent authorities denied the extension to the writ petitioner/appellant on the premise that the writ petitioner/appellant is guilty of overloading and squarely comes within the ambit of fetter clause put in the said lease agreement as well as said policy.
It further appears that prior to the expiration of the term reserved under the said lease agreement dated March 7, 2007 the respondent authorities have floated a tender and the writ petitioner in the garb of the so-called extension is trying to thwart the entire tender process. Mr. Mukherjee tried to convince us that the writ petitioner/appellant has been treated discriminately and as such the petitioner is also entitled to have the extension of the period provided in the lease deed in terms of the extension clause appearing in the lease agreement as well as comprehensive parcel leasing policy. Mr. Mukherjee had relied upon certain letters annexed to affidavit-in-reply filed before the Appellate Court in support of the discriminatory act on the part of the respondent authorities.
The aforesaid contention of Mr. Mukherjee cannot be accepted for the reason that the case of a discrimination has not been made out and/or is specifically pleaded in the writ application. Furthermore, the circumstances lending benefit of an extension to others are different than the circumstances of refusal to grant extension to the writ petitioner/appellant. It does not appear from the aforesaid letters as annexed to the affidavit-in-reply as to whether the person in whose favour the extension is granted was guilty of committing violation of any of the provision of their agreement or have been cautioned for overloading. Another aspect which are relevant is that prior 10 to the expiration of the term of the lease agreement dated March 7, 2007 the respondent authorities have issued a tender for leasing out the real SLR for 4 mt. ton in train no. 2839 UP (Howrah- Chennai Mail). We find force in the aforesaid contention form the observation of the Hon'ble Apex court in a judgement in the case of Western U.P. Electric Power and Supply Co. Ltd. Vs. State of U.P. & Ors. reported in AIR 1970 SC 21 :
"Article 14 of the Constitution ensures equality among equals : its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law"
Thus, the aforesaid judgment being State Bank of Haryana & Ors. (supra) and M/s. Jain Exports Pvt. Ltd. & Anr. (supra) lend no support to the writ petitioner/appellant.
In the judgment of Union of India Vs. M/s. Anglo Afghan Agencies etc. reported in AIR 1968 SC 718 the Hon'ble Supreme Court was pleased to hold that "it was somewhat faintly urged that if the Government is held bound by every representation made by it regarding its intention, when the exporters have acted in the manner they were invited to act, the Government would be held bound by a contractual obligation even though no formal contract in the manner required by Art. 298 of the Constitution was executed, and the exporter would be entitled to claim damages contrary to that provision for breach of the contract even though no formal written contract had been executed in the manner provided by the Article. But the respondents are not seeking to enforce any contractual right :they are seeking to enforce compliance with the obligation which is 11 laid upon the Textile Commissioner by the terms of the Scheme, and we are of the view that even if the Scheme is executive in character, the respondents who were aggrieved because of the failure to carry out the terms of the Scheme were entitled to seek resort to the Court and claim that the obligation imposed upon the Textile Commissioner by the Scheme be ordered to be carried out."
In another judgment of Home Secretary, UT of Chandigarh & Anr. Vs. Darshjit Singh Grewal & Ors. reported in (1993) 4 SCC 25 the Hon'ble Apex court was pleased to observe in para 14 as follows :
"It may be relevant to emphasise at this juncture that while the rules and regulations referred to above are statutory, the policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated it to all concerned including the Cjhandigarh Engineering College, the Administration is bound by it. It can, of course, change the policy but until that is done, it is bound to adhere to it."
There is no quarrel with regard to such proposition rather it supports to a case that the policy guidelines if statutory, should be adhered to. In the instant case the policy contemplates the extension subject to the restrictions and stipulation as mentioned therein and the respondent authorities invoked such restrictions, having found the writ petitioner/appellant overloading the permissible weight which is reflected in the said letter dated 11th October 2008. 12
In view of the reasons cited above, we do not find any merit in the submission of Mr. Mukherjee, ld. Senior Advocate and also we do not find that the order impugned herein suffers from any illegality or irregularity.
The appeal is thus dismissed. However, there will be no order as to costs.
(Pinaki Chandra Ghose, J) (Harish Tandon, J)