Calcutta High Court (Appellete Side)
Deepak Meghani vs Union Of India & Ors on 11 November, 2014
Author: Aniruddha Bose
Bench: Aniruddha Bose
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10 11.11.14. W.P. 29495 (W)_of 2014.
ab
Deepak Meghani
Vs
Union of India & Ors.
Mr. Saktinath Mukherjee (Sr. Advocate)
Mr. Saptangshu Basu (Sr. Advocate)
Mr. Debrup Bhattacharjee
... For the Petitioners.
Mr. Malay Das
Mr. Saptarshi Roy
... For the S. E. Railways.
A Supplementary Affidavit has been filed on behalf of the
petitioner. Let the same be kept with records.
The petitioner has entered into a lease agreement with the
Railway authorities in respect of a parcel van on round trip basis
between Kharagpur and Lokmanya Tilak Terminus (LTT) by train nos.
8030/8029. The petitioner commenced operation in pursuance of the
lease agreement on 16th November, 2011. At the initial stage there
was dispute as to whether the petitioner would be guided by the 2006
Comprehensive Lease Policy formulated by the Railways or a
subsequent modified policy which was adopted in the year 2010
would be applicable in the case of the petitioner. The dispute had
reached this Court as the petitioner had filed a writ petition,
registered as W.P. No. 17728 (W) of 2011. An Hon'ble Single Judge of
this Court held in a judgement delivered on 29th February, 2012 that
the policy adopted by the Railway Board on 28th March, 2006 would
be followed so far as the agreement of the petitioner is concerned.
Now if the date of commencement of operation of the petitioner is
treated to be 16th November, 2011, the ordinary term lapses on 15th
November, 2014. As per the Lease Policy of 2006, the initial term of
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the lease is for a period of three years. The relevant clause, being para
"E", of the 2006 Policy stipulates:-
"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 lease 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".
The petitioner wants this clause relating to extension to be made applicable in his case at this stage. The stand of the Railway authorities on the other hand is that the modified policy of 2010 should hold the field now, under which there is no provision for extension of the term of an existing lease. As per the 2010 policy, a fresh lease agreement would have to be executed to continue the operation. Alternate submission of the learned Counsel for the Railway authorities is that sub-clause 2 of para "E" of the aforesaid policy vests the railways with discretion as to whether they shall extend the lease or not and such extension cannot be claimed as a 3 matter of right by a lease holder.
As regards applicability of the said clause in the case of the petitioner at this stage, my prima facie view is that the dispute on that issue is no more res intergra, and has been settled by this Court in W.P. No. 17728 (W) of 2011. While holding that the 2006 policy would be applicable, the argument of the Railways that the modified policy of 2010 ought to prevail in this case has been repelled. This Court has accepted the stand of the petitioners in that proceeding as regards applicability of the aforesaid clause. The 2010 policy, through which I was taken by the learned Counsel for the Railways does not extinguish per se the rights or duties of the parties generating from an agreement executed in terms of the 2006 policy. The provision for extension in respect of the said policy has to be adopted in full and cannot be adopted in a truncated manner. In my opinion, which is prima facie at this stage, the provision relating to extension ought to apply in the case of the petitioners.
I also accept the submission of the Railways that extension cannot be claimed as a matter of right and it would be within the discretion of the Railways to decide whether such extension shall be granted or not. This appears from a plain reading of para "E" of the 2006 policy. Needless to add, such discretion has to be applied in a reasonable and rational manner, but in terms of the 2006 policy. These , of course, are my prima facie finding in this matter.
In such circumstances, I direct, as an interim measure, the Railways to consider the application of the petitioner for extension of the lease term in accordance with the 2006 policy. The refusal on the part of the Railways to consider such application, which has been 4 specified in their communications dated 8th October, 2014 and 3rd November, 2014, copies of which has been made annexures "P24" and "P27" to the writ petition and the supplementary affidavit, shall remain stayed and consideration shall be made afresh in terms of this order. In the event the petitioner is eventually unsuccessful in this writ petition or there is further modification of this order in future, then the petitioner will have to pay the rates as per the 2010 policy, if the petitioner is given extension in terms of clause "E" of the 2006 policy. Such consideration shall take place within a period of seven days. If the agreement lapses in the meantime, then it would be within the power of the Railways to permit continuance of the agreement till the final decision is taken, at the prevailing rate or keep the lease space vacant till the date of decision.
Let this matter appear in the list on 20th November, 2014 under the heading "To Be Mentioned".
On that date, the decision of the railways shall be produced before this Court.
(Aniruddha Bose, J.)