- (1.) The issues to be determined are as follows :- (a) Whether railway authority denied extension of operation for two years in terms of the Clause 'E' of the Railway Board Policy where it stipulates that extension for a period of two years would be granted subject to the payment of 25 per cent extra freight rate (b) Whether the railway authority has any scope to introduce amended policy of the extension clause thereby making a departure from the existing conditions in the tender documents (c) While the delay in complying with the condition stipulated in the initial offer letter was condoned by the concerned railway authority then whether there is any scope to introduce amended policy of the extension clause by the railway authority FACT OF THE CASE
(2.) The petitioner's case in brief is as follows :- On 28th March, 2006 the respondent railway authority issued Railway Board's Policy No.2006/TC(FM)/10/1. Thereafter sometime in October, 2008 railway authorities floated a tender in the newspaper being tender notification no.Com/G.27/Parcel/Lease VPU-VPH/08 for leasing of a VPH of 25 tones capacity by train no.8030/8029 Ex Kharagpur to LTT on round trip basis for a period of three years. On 15th October, 2008 the petitioner contested in the bid against the said tender upon depositing Rs.1,00,000/- with FA and CAO South Eastern Railway as earnest money by way of bank drafts. On 3rd March, 2009 the respondent no.4 accepted the petitioner's response to the said tender thereby asking the petitioner to fulfil some documents. Unfortunately on 17th August, 2009 the railway authority cancelled the said letter of acceptance. Challenging the said cancellation the petitioner moved writ petition being W.P No.11747 (W) of 2011 before this Hon'ble Court. The said writ petition was disposed of by this Hon'ble Court on 26th September, 2011 thereby directing the respondent no.4 to consider the prayer of the petitioner within a fortnight if no fresh tender has been issued. On 7th October, 2011 the respondent no.4 arranged a hearing for consideration of the petitioner's prayer and on 16th November, 2011 the respondent authority allowed the petitioner to load/unload goods in 23 tones VP in train no.8030/8029 in LTT-Kharagpur-LTT route on round trips at Kharagpur station. On 16th November, 2011 the petitioner made representation for extension of the leasing up to Shalimar. Pursuant to the order passed on 13th January, 2012 in W.P No.519 (W) of 2012 the respondent authority allowed the petitioner to load/unload at Shalimar station instead of Kharagpur station. On 29th February, 2012 the Hon'ble Single Bench disposed of another writ petition being WP No.17728 (W) of 2011 thereby directing the respondent to collect freight rate @ 'P' Scale instead of 'R' Scale. Challenging the said order the respondent authority filed an appeal and the Hon'ble Division Bench on March, 2016 was pleased to dismiss the said appeal filed by the respondent authority. On 9th April, 2014, the respondent no.4 issued a letter to the petitioner thereby informing him to execute the agreement from Kharagpur to LTT. Against that letter the petitioner informed the authority that pursuant to the interim order passed in WP no.519 (W) of 2012 the petitioner is entitled to carry on loading and unloading facilities at Shalimar instead of Kharagpur. But the respondent authority without paying any heed to the petitioner's representation, on 14th April, 2014 directed the petitioner to resume operation from Kharagpur immediately otherwise the respondent authority will take step for stoppage of allotment of wrecks to the petitioner. Challenging the direction the petitioner again filed a writ petition before this Hon'ble Court being WP no.16117 (W) of 2014. On 27th July, 2014 the said writ petition was disposed of directing the respondent authorities to ensure adequate facilities to the petitioner for smooth operation of loading and unloading. Thereafter the railway authority issued a letter for extension of agreement. Against that petitioner made representation for extension of lease operation for two more years as per the Railway Board's Policy of 2006. The petitioner's representation was rejected by the railway authority. Challenging the same the petitioner filed a writ petition and on 19th January, 2015 the said writ petition being WP No.31486 (W) of 2014 was disposed of directing the respondent authorities to re-visit the petitioner's representation. On 30th January, 2015 hearing was held and a demand notice was issued by the respondent no.8. Against that the petitioner made representation but rejecting the petitioner's representation dated 2nd February, 2015 the impugned order dated 13th February, 2015 was issued. SUBMISSIONS OF THE LEARNED ADVOCATES
(3.) Mr. Saptangshu Basu, learned senior counsel appearing for the petitioner vehemently argued that the railway authority misconstrued the order of the Hon'ble Court thereby relying upon the FM-Circular No.6 of 2014 which has no manner of application in the present case in hand.;