Sangeet Lodha, J. - (1.) BY way of this writ petition, the petitioner has questioned legality of the action of the Senior Divisional Commercial Manager, North Western Railway, Bikaner giving advance notice vide communication dt. 27.11.14, for termination of contract of 4.0 tone space of FSLR -I in Train No. 13008 ex SGNR -SWH, for Sunday only, for a period of three years w.e.f. 4.8.13 to 3.8.16, awarded vide order dt. 30.5.13. That apart, the fresh tender notice issued by the North Western Railway for leasing out the space inter alia in Train No. 13008, is also impugned in the writ petition. It is averred that 4.0 tone space in FSLR -I compartment in Train No. 13008 ex Sri Ganganagr to Hawarah @ 28,628/ - plus 2% development charges Rs. 572.56 per day (for Sunday only) with overall value of contract quantified at Rs. 45,55,287/ - was leased out to the petitioner vide order dt. 30.5.13. Pursuant to the contract awarded as aforesaid, an agreement was executed between the parties. As per clause 24.1 of the Agreement, the Railway Administration reserved its right to terminate the operation of the lease contract/agreement for any reason whatsoever after serving one month's notice to the lease holder. It was further stipulated in the said clause of the contract that the Railway reserves the right to terminate the contract without giving any notice at any time for whatsoever reason as a punitive measure or breach of agreement by the lease holder or in case of operational exigencies or if it is necessary to do so in the public interest.
(2.) LEARNED counsel for the petitioner contended that the action of the respondent -Railway in proposing to terminate the contract w.e.f. 31.12.14 without assigning any reason is ex facie illegal and arbitrary. Learned counsel submitted that before terminating the contract, no opportunity of hearing has been extended to the petitioner. Learned counsel submitted that the petitioner has not breached any of the condition of the Agreement and therefore, the penal action sought to be taken by the Railways without giving an opportunity of hearing to the petitioner, is violative of principle of natural justice. However, learned counsel fairly submitted that while issuing the fresh NIT, the Railway has proposed to award the contract for all seven days in the week instead of Sunday only. Regarding the availability of the alternative remedy and scope of the interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, learned counsel submitted that the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion and therefore, the petitioner cannot be non suited on the ground of availability of alternative remedy. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Harbanslal Sahnia & Anr. vs. Indian Oil Corporation limited & Ors., : AIR 2003 SC, 2120.
(3.) I have considered the submissions of the learned counsel and perused the material on record.;