High Court
Case Details
WP(C) 4242/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr.D.Das, learned senior counsel for the petitioners and Mr. A.K.Sarkar, learned Standing Counsel, Eastern Railway. Also heard Mr. B.N.Gogoi, learned Standing Counsel, N.F. Railway. This petition seeks a direction to the respondents for change of terminal from Dankuni either to Howrah or Sealdah or Chitpur for operation of Parcel Cargo E xpress Train pursuant to contract agreement dated 30.04.2013. Case of the petitioners is that pursuant to a tender notification dated 25.9.201 2, petitioner No.1 has been given the lease right of Parcel Cargo Express Trai n Ex- New Guwahati- Dankuni- Patel Nagar and back on round trip basis for a p eriod of 3 years vide tender acceptance intimation dated 28.1.2013 issued by Se nior Divisional Commercial Manager, Lumding Division, N.F. Railway. Petitioners made a request to the Senior Divisional Commercial Manager, N.F. Railway ,Lumdi ng on 25.2.2013 requesting change of terminal from Dankuni to either Howrah or Sealdah or Chitpur on the ground that Dankuni never dealt with parcel traffic. In the minutes of the meeting held on 20.3.2013 where concerned parties partic ipated, it was decided that request of the petitioners for change of terminal would be forwarded to the Eastern Railway by N.F. Railway. In the meanwhile, a contract agreement was entered into as 30.04.2013 between petitioner No.1 and the Railways for execution of the above contract. As per cla use 5.4 of the contract agreement, which deals with chance of terminal, Zonal R ailway will be at liberty to chance the terminal within the same area in view of operational exigencies or party’s request looking into local circumstance s provided reasons are justified. It appears that the matter was also brought to the notice of the Railway Board and as per letter dated 1.5.2013, Chief Commercial Manager, Eastern Railway was requested by the Director of Freight Marketing, Railway Board to examine the issue and take necessary action for enhancing parcel earning and successful running of parcel cargo express train. However, the office of the Chief Comme rcial Manager, Eastern Railway informed his counter-part in the N.F. Railway vide letter dated 9.5.2013 declining to accept the request for change of termi nal from Dankuni to either Howrah or Sealdah or Chitpur . Aggrieved, petitioners have preferred the present writ petition. In the affidavit filed by N.F. Railway, stand taken is that the stations concern ed are within the jurisdiction of Eastern Railway and, therefore, decision has t o be taken by Eastern Railway. In the affidavit filed by Eastern Railway, it is contended that as per the cont ract agreement, the notified terminal is Dankuni. Petitioners cannot claim as a matter of right change of terminal from Dankuni to either Howrah or Sealdah o r Chitpur. Dankuni- Chitpur do not fall within the same area. Same area has not been defined either in the statute or in the departmental circulars . Hoqw Howe ver, as per past practice and system of administration in Eastern Railway, Da nkuni- Chitpur cannot be said to be within the same area. Reference has been mad e to the communication dated 30.8.2013 of the Chief Commercial Manager, Easter n Railway to his counter-part in the N.F. Railway wherein it is stated that Chi tpur is located 21.3. kms from Dankuni and that Chitpur and Dankuni are under two different divisions of Sealdah and Howrah of Eastern Railway. Therefore, D ankuni and Chitpur do not fall within the same area. As such, proposal for chan ge of terminal from Dankuni to Chitpur is not acceptable. Mr. Das, learned senior counsel appearing for the petitioners submits that as per para 14 of Railway Board’s F.M. Circular No.2/2007 dated 20.2.2007, a Zonal Railway may change a terminal within the same area for reasons of operational exigencies or party’s request in view of local circumstances provided reason s are justified. He also submits that as per information furnished by Eastern R ailway under the Right to Information Act, 2005, existing infrastructure at Dank uni is inadequate to facilitate business of the parcel cargo express train. Th ere is no shed for stacking of parcel and the approach road is also very narrow, which may hamper business. Since Howrah or Sealdah or Chitpur are within the jurisdiction of Eastern Railway, all the above stations can be said to be within the same area. Moreover, change of terminal would have no financial implicatio n for the Railways. On the other hand, it may further facilitate the contract wo rk. Mr. Sarkar, learned counsel for Eastern Railway , on the other hand, submits th at decision of the Eastern Railway cannot be challenged before this Court as it is beyond its territorial jurisdiction. This Court has not territorial juri sdiction to adjudicate on the issue raised. He further submits that on merit al so petitioners cannot claim as a matter of right any change of terminal. Zona l authorities of Eastern Railway have examined the matter and have come to the c onclusion that there is no justification for such change of terminal. Mr. Gogoi, learned Standing Counsel, N.F. Railway submits that he will support t he stand taken by the Eastern Railway. Submissions made have been considered. On the first objection raised by Mr. Sarkar, tender acceptance intimation dated 28.1.2013, more particularly, clause-22 thereof makes it abundantly clear that all disputes arising out of the tender would be subject to the jurisdiction of the Gauhati High Court or its subordinate Courts. Contract was entered into wit hin the jurisdiction of Gauhati High Court and all the parties to the contract are within the jurisdiction of this Court. Dispute relating to change of termin al arises out of the contract. Therefore, it cannot be said that this Court wou ld have no territorial jurisdiction to adjudicate on the issue raised in the p resent writ petition. Coming to the merit of the case, para 14 of the Railway Board’s circular dated 20.2.2007 clearly provides that the Zonal railways may change a terminal within the same area in view of operational exigencies or party’s request in view of local circumstances provided reasons are justified. Reasons put forward by the petitioners for change of terminal are that infrastructure at Dankuni is to tally inadequate to deal with Parcel Cargo Express Train whereas the other termi nals have better infrastructure which will facilitate business. Taking note of the above aspect, Railway Board had also requested the Chief Commercial Manage r of Eastern Railway to examine all the pros and cons for change of terminal w hich would have a bearing on enhancement of parcel earnings and successful runn ing of Parcel Cargo Express Train. The said para 14 of the Railway Board’s circular dated 20.2.2007, if read in a h olistic manner, would indicate that (cid:28)same area (cid:29) mentioned therein would be in relation to the jurisdictional area of the Zonal Railway. Since the terminals mentioned by the petitioners namely, Howrah or Sealdah or Chitpur, are within the operational area of Eastern Railway and admittedly not far from each other, they would fall within the ambit of the expression (cid:28)same ar ea (cid:29) as per para 14 of the Railway Board’s circular. It is true that petitioners cannot claim as a matter of right any change of ter minal but since such a provision is there and a request has been made in terms thereof, it is required to be considered in a reasonable, fair and practical ma nner. A pragmatic approach is required in such matters. The approach of the Chie f Commercial Manager of Eastern Railway does not appear to be so. It is also found from the documents placed on record that the Deputy Chief Operational Ma nager of Eastern Railway in his letter dated 2.5.2013 addressed to the Chief C ommercial Manager (FM), Eastern Railway has stated that the proposal for change of terminal was examined and it was found that there is no operational constra int in dealing with parcel cargo at Chitpur terminal. Therefore, it was state d that Chitpur may be notified for handling of parcel traffic. This letter has not been disputed by the respondents. In view of above, respondent No.3 i.e. Director of Freight Marketing, Railway B oard , Government of India is directed to ensure change of terminal as sought for by the petitioner No.1 from Dankuni to Chitpur in terms of clause 5.4 of the contract agreement dated 30.4.2013. Writ petition is allowed in the above terms. No cost.