- (1.) 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 W.P. No. 827(W) of 2010.
(2.) 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 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 (1st 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, lump sum 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 lump sum leased freight payable for leasing of four tones parcel space in the (1st compartment of front Brakevan/IInd compartment of front Brakevan/one compartment of rear Brakevan/Assistant Guard's compartment/Parcelvan) 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 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 lump sum leased freight or the excess weight only, no penalty. (ii) 3% up to 5% Normal lumpsum leased freight for the excess 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 : 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 lump sum 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 where under 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 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 where under 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.
(3.) 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.";