Calcutta High Court (Appellete Side)
M/S. Mahavir Logistics & Ors vs Union Of India And Ors on 23 July, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Appellate Side)
Present :
The Hon'ble Justice Joymalya Bagchi
W. P. NO. 519 (W) OF 2012
M/S. MAHAVIR LOGISTICS & ORS. - PETITIONERS
-Versus-
UNION OF INDIA AND ORS. - RESPONDENTS
WITH
W. P. NO. 16117 (W) OF 2014
MR. DEEPAK MEGHANI - PETITIONER
-Versus-
UNION OF INDIA AZND ORS. - RESPONDENTS
WITH
C. A. N. 4526 OF 2014
AND
C. A. N. 4385 OF 2014
For the Petitioner : Mr. Arabindo Chatterjee
Mr. Suvanil Chakraborty
Mr. Debrup Bhattacharya
For Union of India : Mr. Saptarshi Roy
Heard on :
AND
Judgment on : July 23, 2014
Joymalya Bagchi, J. :
Both the writ petitions have been heard analogously and are being disposed of by this common judgment and order.
A tender was floated in 2008 for leasing of VPH of 25 tons capacity for carrying parcel packages Ex Kharagpur on round trip basis by Train No. 18030/18029 (earlier Train No. 8030/8029). Subsequently, carrying capacity of VHP was reduced to 23 tons. The petitioners participated in the tender and were successful. A request 2 was made to the petitioners to execute agreement within ten days, but the petitioners failed to do so. Offer letter was cancelled. The petitioners filed writ petition being W. P. No. 11747 (W) of 2011 before this Court challenging the cancellation of the offer letter. The said writ petition was disposed of directing the railway authorities to consider the representation of the petitioners and pass a speaking order thereon. Accordingly, speaking order dated 7.10.2011 was passed permitting the petitioners to load/unload VPH on round trip basis and collect freight rate at the rate of 'R' Scale. The petitioners were aggrieved by such decision and filed another writ petition being W. P. 17728 (W) of 2011 on the ground that they were being compelled to pay a higher freight rate at Scale 'R' instead of Scale 'P'. By order dated 29.2.2012 the aforesaid writ petition was disposed of by a learned Single Judge directing that the petitioners be allowed to load/unload VPH 23 tons ex Kharagpur on two days a week, that is every Sunday and Wednesday, within the scheduled stoppage of the train under reference at the freight rate in Scale 'P' subject to the execution of agreement for a period of three years from date on which the petitioners started operation in terms of the order dated 9th April, 2011 subject to compliance of all other formalities, if any, within thirty days. The said order was confirmed by the Hon'ble Division Bench of this Court in appeal. It is pertinent to mention that another writ petition being W. P. No. 27807 (W) of 2011 was filed by the writ petitioners against the railway authorities for permitting the petitioners to carry on loading/unloading activities from Shalimar instead of Kharagpur. The said writ petition was disposed of directing the railway authorities to consider the grievance of the petitioners and pass a speaking order thereon. Pursuant thereto by order dated 5.1.2012 the railway authorities took a decision that the loading/unloading point cannot be changed from Kharagpur as it 3 would tantamount to violation of the terms of tender. The said order was assailed by the petitioners in W. P. 519 (W) of 2012. In the meantime, it appears that due to lack of infrastructure facilities the respondents permitted the petitioners on purely temporary basis vide order dated 12.1.2012 to load/unload VPHs at Shalimar at the same rate. However, subsequently by order dated 9.4.2014, the petitioners were directed to resume loading/unloading facilities at Kharagpur in terms of the tender and to execute agreement in terms of the order dated 29.2.2012 passed by this Court in W. P. 17728 (W) of 2011. Thereafter, the petitioners commenced loading/unloading work at Kharagpur. Due to lack of infrastructural facilities at the said station, such loading/unloading could not be effectively done and the petitioners were saddled with various penalties. Accordingly, the petitioners made representations dated 8.5.2014 and 23.5.2014 drawing the attention of the respondent authorities as to the lack of infrastructure facilities for carrying loading/unloading activities from Kharagpur. No action being taken thereon and the petitioners were constrained to file another writ petition being W. P. No. 16117 (W) of 2014 for consideration of their grievances, as aforesaid. During the pendency of the said writ petitions the respondent authorities by order dated 4.6.2014 turned down the representation dated 23.5.2014 of the petitioners on the ground that necessary infrastructure for loading/unloading facilities are available at Platform Nos. 3 and 4 at Kharagpur Station and that the indent VPs and leased VPs are dealt at the same platform which are attached and detached by other trains. Supplementary affidavit has been filed placing on record the said decision. It has been pleaded in the supplementary affidavit that there is no infrastructure at the platforms where the train in question was halted for their loading/unloading activities. Hence, impugned order dated 4.6.2014 is unjustified.
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Opposition to such supplementary affidavit has been filed wherein it is stated that VPH for loading/unloading from terminating trains at Kharagpur are dealt at platform nos. 3 and 4 and that loading/unloading in Assistant Guard's Cabin, brakevan and VPs on through tains are being carried out from the platforms within scheduled stoppage of the trains. It is also stated that basic infrastructure has improved even in comparison to other railway stations in Kharagpur division for loading/unloading facilities.
Mr. Chatterjee, learned Senior Counsel appearing for the petitioners, submits that the petitioners had participated in the tender on the understanding that there were basic infrastructural facilities in the platforms for loading and unloading of VPs. There is absolutely absence of loading and unloading facilities in various platforms other than platform nos. 3 and 4. It is his specific submission that platform nos. 3 and 4 are not utilized for schedule stoppage of the train in question as the same was only for originating/terminating trains ex Kharagpur. Accordingly, he submits that due to failure on the part of the railway administration to provide infrastructural facilities the petitioners are unable to carry on loading/unloading activities at Kharagpur station. Accordingly, he prays that the impugned decision of the respondent authorities dated 5.1.2012 (challenged in W. P. No. 519 (W) of 2012) and the decisions dated 9.4.2014 and 4.6.2014 (challenged in W. P. No. 16117 (W) of 2014) be set aside and the matter be reconsidered.
The learned counsel for the Railway Administration submits that the tender was floated for loading/unloading VPs Ex Kharagpur. Terms of the tender cannot be altered and accordingly, prayer of the petitioner to permit them to load/unload parcels at Shalimar or any other point apart from Kharagpur is untenable. He further submits that by order dated 29.2.2012 in W. P. No. 17728 (W) of 2011, this 5 Court had directed that the petitioners be allowed to load/unload VPs at Kharagpur and to execute the agreement by and between the parties in such terms. The petitioners failed to do so and have avoided the issue on one flimsy ground or the other. He further submits that no interference in the impugned decisions is called for. He also submits that adequate infrastructural facilities are available in every platform and that in the event of logistic inconvenience, the same may be looked into.
I have considered the submissions of the parties. It is undisputed that the tender was floated for loading/unloading VPs ex Kharagpur. The petitioners participated in the tender being fully aware of the terms thereof. After the petitioners started operating from Kharagpur, they found difficulties in discharging their responsibilities under the terms of the tender due to lack of facilities at platforms other than platform nos. 3 and 4 which were reserved only for originating/terminating trains. Acknowledging such inconvenience the railway authorities as temporary measure on 9.1.2012 had permitted the petitioners to carry on loading/unloading of VPs from Shalimar as a temporary measure. However, bearing in mind the terms of the tender by decision dated 5.1.2012 and thereafter order dated 9.4.2014, the petitioners were directed to execute the contract for loading/unloading VPs Ex Kharagpur and to carry on such activities from Kharagpur in terms of the tender. I am of the opinion that as the tender was floated in respect of loading and unloading VPs Ex Kharagpur, it was not within the domain of the respondent authorities to enter into private arrangement with the petitioners to permit them to carry on such activities from any other place other than Kharagpur. It is true that supervening event rendering it impossible for the parties to contract to perform the same is a good ground for frustration of the contract. However, such an 6 event would not entail the respondent authorities to modify the terms of the tender. To do so would, in fact, amount to altering the terms of the tender after the selection is complete. It is settled law that rules of the game cannot be changed after the same is played.
Accordingly, I am of the view that the impugned decisions dated 5.1.2012 and 9.4.2014 of the respondent railway authorities calling upon the petitioners to execute the agreement for loading/unloading VPs Ex Kharagpur and carry on such activities from Kharagpur does not call for interference. However, one cannot lose sight of the fact that the petitioners cannot be compelled to perform their obligations under a contract which is incapable of performance due to supervening circumstances beyond their control. Providing infrastructural facilities for loading and unloading at a platform where the train halts is a primary pre-requisite for discharging the duties under the proposed agreement. It is the version of the railway authorities that adequate facilities as ordinarily available in other stations are also provided in the platforms where the train halts at Kharagpur. This is hotly disputed by the learned Senior Counsel appearing for the petitioners. I am afraid that such disputed questions of facts cannot be gone into and decided in this jurisdiction.
The impugned decision of the railway authorities dated 4.6.2014 rejecting the representation dated 23.5.2014 of the petitioners indicating that there is necessary infrastructure for loading/unloading VPs available in platform nos. 3 and 4 does not appear to address the issues raised by the petitioners with regard to the lack of infrastructural facilities in other platforms. No doubt it has been observed in the impugned order dated 4.6.2014 that "indent VP and leased VPs are dealt with at same platform which are attached and detached by other trains" but the said order is singularly silent as to what facility is available in the said platforms (other than platforms 7 no. 3 and 4) for carrying on such activities. Opposition to the supplementary is also of little help in that regard. Accordingly, I am of the considered view that the decision dated 4.6.2014 does not address the issues as the lack of infrastructure in the platforms to which train in question is attached/detached at Kharagpur.
Accordingly, the order dated 4.6.2014 is set aside. Respondent no.4 is directed to reconsider the representations dated 8.5.2014 and 23.5.2014 afresh after giving opportunity of hearing to the petitioners and pass a reasoned order thereon with regard to the availability of adequate infrastructural facilities in the platforms where the train in question is attached and detached at Kharagpur. In the event the respondent no.4 is of the opinion that such facilities are not adequate, he shall take necessary steps for rendering adequate improvement thereto so as to enable the petitioners to discharge their responsibilities under the proposed agreement. Reasoned order shall be passed within 30 days from the date of communication of this order and order, so passed, shall be communicated to the petitioners within two weeks thereafter.
In view of the aforesaid discussion, W. P. No. 519 (W) of 2012 challenging the decision dated 5.1.2012 is dismissed. The W. P. No. 16117 (W) of 2014 is disposed in the light of the aforesaid directions. Consequently, both the applications being C. A. N. 4526 of 2014 and C. A. N. 4385 of 2014 are also disposed of.
There shall be no order as to costs.
(Joymalya Bagchi, J.) 8