Madhya Pradesh High Court
Pravesh Dwivedi vs Bhopal Sahakari Dugdha Sangh Maryadit on 19 May, 2017
Author: J.K.Maheshwari
Bench: J.K.Maheshwari
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : BEFORE JUSTICE J.K.MAHESHWARI
Writ Petition No. 2763/2017
Pravesh Dwivedi
-Versus-
Bhopal Sahakari Dugdha Sangh Maryadit
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Shri Parag S. Chaturvedi, Advocate for petitioner.
Shri Pranay Gupta, Advocate for respondents.
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ORDER
(19.05.2017) This petition under Article 226 of the Constitution of India has been filed challenging the NIT dated 3.2.2017 issued by the respondent for transportation of the Milk through vehicles having insulated tankers on a route Bhopal-Sagar-Betul Dairy on the ground, that petitioner is the existing contractor for transportation of the Milk having contract in his favour in furtherance to the NIT Annexure P-1 for the year 2014-16, which is in existence.
2. It is said that as per Clause 23 of the said agreement, the period of contract was 25.9.2014 to 24.9.2016. As per Clause 34, after elapse of said period of 2 years, contract may be extendable on year to year basis upto 3 years by mutual consent on having satisfactory performance. It is the contention of the petitioner that after elapse of the period of 2 years, further extension for 3 years on year to year basis has not been granted though his performance was satisfactory, therefore, without extending the said period, issuance of NIT is unsustainable and arbitrary.
3. By filing an amendment application I.A. No. 6654/2017, it is said by cancelling NIT dated 3.2.2017, a fresh NIT has been issued on 2 6.5.2017, however, it is a subsequent event, therefore, such an amendment may be allowed.
4. The respondent has opposed the prayer on the ground that as per Clause 23 of the contract of transportation, which was granted to the petitioner on a route Bhopal to Shahganj-Barkhtara-Badi route has been elapsed on 24.9.2016. The respondent is not consenting for the extension on the ground, as now they want vehicle of insulated tankers by a fresh contract. The extension upto 3 years on year to year basis was based on consent of both the parties looking to the performance. On account of the decision of the Management for engaging the vehicles of the insulated tankers, the said extension was not permitted. It is further contended that the NIT in question in this petition has already been cancelled and thereafter a fresh NIT has been issued on 8.4.2017. Some of the persons made challenge to the said NIT by filing W.P. Nos. 5826/2017 and 5832/2017. Those petitions have been dismissed and writ appeals against those petitions are pending. It is further said that the said NIT has itself been cancelled and now fresh NIT has been issued on 6.5.2017, which is a fresh cause of action to the petitioner, therefore, without mentioning the fact in amendment application regarding issuance of the NIT dated 8.4.2017 and dismissal of the writ petitions and pendency of the writ appeals and thereafter its cancellation, issuance of fresh NIT on 6.5.2017 is a fresh cause of action. In such circumstances, the amendment in this petition cannot be allowed and the ground as raised is not tenable, therefore, petition may be dismissed.
5. After hearing learned counsel for both the parties, looking to the facts of the case, the claim of the petitioner rests upon Clause 34 of the 3 Agreement, which is reproduced as under :-
"34. यह अनबध द वर क ल ए पभ वश रहग दगध सघ द र पररवहनकर " क क य" द वर" क# अवलध म% सर रपद प ए ज न पर अनबध क# स म न शर एव लनध "ररर दर पर क य" अवलध एक-एक वर" करक र न वर" हर आपस सहमलर स बढ़ ई ज सकग |"
6. As per terms of the Agreement, grant was made from Bhopal to Shahganj-Bakhtara-Badi route for a period 25.9.2014 till 24.9.2016 and the said period has already been elapsed. The extension cannot be claimed as a matter of right but it was by way of a consent on having satisfactory performance. In case the Management is not consenting for extension of the period upto 3 years on year to year basis, it would not be a ground of challenge to issue fresh NIT on 3.2.2017. It is to observe here that the Management is having a right to issue fresh NIT after elapse of the basic period of contract of 2 years if they are not consenting for extension of the said contract, therefore, the ground as taken to challenge the NIT dated 3.2.2017 is baseless and the NIT dated 3.2.2017 cannot be termed to be arbitrary in terms of Clause 34.
7. So far as amendment application I.A. No. 6654/2017 is concerned, it is to observe here that after issuance of NIT dated 3.2.2017, fresh NIT was issued on 8.4.2017 on cancelling the NIT in question. The said NIT was challenged in W.P. No. 5826/2017 by some of the persons, which was dismissed by this Court and writ appeal is pending. Without mentioning those facts and on cancellation of NIT dated 8.4.2017, now fresh NIT has been issued on 6.5.2017 on the basis of which amendment is sought, in my considered opinion, such amendment cannot be allowed and said amendment gave petitioner a fresh cause of action. NIT dated 6.5.2017 has also been challenged by some of the persons in W.P. No. 7128/2017, therefore, also 4 amendment cannot be allowed.
8. In view of the foregoing discussion, in the facts of the case as discussed above, there is no merit in this petition and particularly the NIT dated 3.2.2017 challenged in this petition has already been cancelled, therefore, this petition is devoid of any merit, hence it is dismissed.
(J.K.Maheshwari) Judge PB