Calcutta High Court (Appellete Side)
Sn Deepak Meghani vs Union Of India & Ors on 19 January, 2015
Author: Debasish Kargupta
Bench: Debasish Kargupta
6 19.1.15 W.P.31486(W) of 2014
sn DEEPAK MEGHANI VS. UNION OF INDIA & ORS.
Mr. Saktinath Mukherjee
Mr. Saptangshu Basu
Mr. Debrup Bhattacharjee
..for the petitioner
Mr. Malay Das
Mr. Saptarshi Roy
..for the respondents
This writ application is directed against an order passed by the respondent no.4 under his memo no. COM/G 27/Percel-Lease/VPH/8030- 8029 dated November 17, 2014 (Annexure P/30 at page 189 of the writ application).
The above order was passed by the respondent no.4 in compliance of an order dated November 11, 2014 passed in the matter of Deepak Meghani Vs. Union of India & Ors (In re:
W.P.29495(W) of 2014). By virtue of the impugned order, the prayer of the petitioner to extend the period of operation of VPH on extension in accordance with the provisions of FM Circular No.12 of 2006 dated March 28, 2006 was rejected.
Having heard the learned Counsel appearing for the respective parties as also after taking into consideration the chequered history of the case, I find that the petitioner entered into a lease agreement of the railways authorities in respect of VPH of 25 tonnes capacity by Train No.8030/8029 Ex Kharagpur to LTT. On the basis of the above agreement, the petitioner started functioning in terms of the lease agreement executed on November 26, 2011. According to the condition mentioned in Paragraph "E" of 2006 policy the petitioner was entitled to an extension of the above lease agreement for a further period of two years at a lease rate 25% more than the lumpsum lease freight rate.
After considering the order impugned in this writ application, I find that the above order was not passed fixing the rate in connection with the above clause being paragraph "E" of 2006. For consideration of the question of applicability of paragraph "E" of 2006 policy, the same is quoted below:-
"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".
After considering of the above, I find that the rate of lease freight was not fixed in terms of the above provisions. The above issue was settled by a judgement dated February 29, 2012 delivered in the matter of M/s. Mahavir Logistics & Ors. Vs. Union of India & Ors. (In re: W.P.17728(W) of 2011) and the relevant portion of the above decision is quoted below :-
"In view of the above, the parties to this proceeding are directed to act upon the impugned order allowing the petitioner no.1 for loading/unloading in V.P 23 tonnes at Kharagpur for two days in a week, i.e. on Sunday and Wednesday within the scheduled stoppage of the train under reference at the freight rate in 'P' Scale 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 April 9, 2011 subject to compliance of all other formalities, if any, within thirty days."
The above judgement reached its finality in view of the order dated March 10, 2014 in the matter of Union of India & Ors. Vs. M/s. Mahavir Logistics & Ors. (In re : M.A.T. 807 of 2012. The above order is quoted below :-
"This application has been filed for condoning the delay in preferring the appeal. Having heard the learned Advocate appearing for the parties and considering the averments made in this writ application, We are satisfied that sufficient reasons have been furnished and adequate grounds have been mentioned for condoning the delay in preferring the appeal.
Therefore, delay in preferring the appeal is condoned.
Let the appeal be registered, if the same is otherwise in form.
This application, therefore, stands allowed.
There will be no order as to costs"
In view of the above, the impugned order cannot be sustained in law and the same is quashed and set aside.
I direct the respondent no.4 to pass an order afresh in the matter taking into consideration the relevant policy as decided by the judgement dated February 29, 2012 delivered in W.P.17728(W) of 2011 which has been affirmed by the order dated March 10, 2014 by a Division Bench in M.A.T. 807 of 2012 within a period of one month after giving the petitioner an opportunity of hearing. The respondent no.4 is further directed to communicate his decision to the petitioner within a week thereafter.
The respondent authority is restrained from creating any third party interest till the deposal as also the communication of the order which may be passed by the respondent authority subject to compliance of other formalities.
This writ petition stands disposed of. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta,J)