M/S. K. S. B. TRAIN CARGO CARRIERS v. THE SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTH WESTERN RAILWAY, BANGALORE DIVISION

Judgment

1. THE SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTH WESTERN RAILWAY, BANGALORE DIVISION, BANGALORE – 560 023.

2. SOUTH WESTERN RAILWAY, HUBLI - 580 020, 2 REPRESENTED BY ITS CHIEF COMMERCIAL MANAGER. (By Sri. N. S. SANJAY GOWDA, ADV. FOR R.1 & R.2) ... RESPONDENTS THIS WRIT PETITION FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE IMPUGNED TENDER NOTICE NO.03/2011 DATED 17.02.2012 UNDER ANNEXURE-E AND REJECTION ORDER DATED 05.03.2012 UNDER ANNEXURE F. IN WP.7649/2012 BETWEEN

M/S. PANKAJ CARGO MOVERS (A REGISTERED PARTNERSHIP FIRM) HAVING ITS OFFICE AT NO. 1, SRI. JAYALAKSHMI COMPLEX, NO. 33, APPAJIRAO LANE, C.T. STREET CROSS, BANGALORE – 560 002, REPRESENTED BY ITS AUTHORISED, REPRESENTATIVE. ... PETITIONER (By Sri. P. S. RAJAGOPAL, LD. SR. COUNSEL) AND THE SENIOR DIVISIONAL COMMERCIAL

1. MANAGER, 3 SOUTH WESTERN RAILWAY, BANGALORE DIVISION BANGALORE – 560 023.

2. SOUTH WESTERN RAILWAY, HUBLI – 580 020, REPRESENTED BY ITS CHIEF COMMERCIAL MANAGER. (By Sri. N. S. SANJAY GOWDA, ADV. FOR R.1 & R.2) ... RESPONDENTS THIS WRIT PETITION FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE IMPUGNED TENDER NOTICE NO.3/11 DTD.17.2.12 VIDE ANNEX-H. IN WP 7657/2012 BETWEEN M/S SPIDERMAN EXPRESS PRIVATE LIMITED (A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956) HAVING ITS OFFICE AT RAGHAVENDRA COMPLEX, II FLOOR, 106/1, J M ROAD, AVENUE ROAD CROSS, BANGALORE - 560 002, BY ITS DIRECTOR. (By Sri. P. S. RAJAGOPAL, LD. SR. COUNSEL) ... PETITIONER AND 4 THE SENIOR DIVISIONAL COMMERCIAL

1. MANAGER, SOUTH WESTERN RAILWAY, BANGALORE DIVISION BANGALORE – 560 023.

2. SOUTH WESTERN RAILWAY, HUBLI – 580 020, REPRESENTED BY ITS CHIEF COMMERCIAL MANAGER. ... RESPONDENTS (By Sri. N. S. SANJAY GOWDA, ADV. FOR R.1 & R.2) THIS WRIT PETITION FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOER THE ENTIRE RECORDS LEADING TO THE IMPUGNED TENDER NOTICE NO.3/11 DTD.17.2.12 VIDE ANNEX-F AND REJECTION ORDER DATED 05.03.12 VIDE ANNEX-G These writ petitions coming on for Preliminary Hearing in 'B' group , this day, the Court made the following: O R D E R These three writ petitions are disposed of by this common order, in as much as the subject matter is common. Though the dates are slightly different, it will not alter the decision taken. 5

2. The petitioners are aggrieved by the action of the respondents in floating the tender Notice No.3/2011 dt. 17-2-12 in so far as it relates to leasing of 4 tonnes parcel space in the second compartment of front brake van on Train No. 12864 – Howrah Express running between Yeshwanthpur Railway station and Howrah Railway station in WP 9101 and 7657 of 2012 and Train No. 12429 – Rajdhani Express running between Bangalore City Railway Station and Hazarath Nizamuddin Railway Station, i.e. in WP 7649/12. All the petitioners claim that they are registered firms having business of transportation at Bangalore. They are in the business of transportation of parcels by trains. The petitioners were awarded the tender pursuant to the tender notification dt. 17-12-08 for a period of three years for lease of 4 tonnes space in Assistant Guard Cabin of Front SLR, Front Brake Van and Rear Brake Van in various trains. One of the trains 6 for which the bids were invited by the earlier tender notification was also in respect of Rajdhani Express and Howrah Express.

3. The petitioner tendered its offer dt. 8-1-09 for 4 tonnes space in Front SLR in Rajdhani Express in response to tender notice dt. 16-12-08. He became the successful tenderer and the first respondent awarded the contract in favour of the petitioner.

4. It is not in dispute that the term of the tender is for a period of three years. According to the petitioner as per the policy and tender conditions in respect of lease of three years and above, the lessee is entitled for extension of lease by two years on additional payment of 25% more than the existing lumpsum lease rate. It is his case that the lease commenced from 11-2-09. There was delay on the part of the respondents in extending the agreement and ultimately the agreement was signed 7 between the petitioner and the first respondent on 7-12- 10 incorporating the terms and conditions of the lease. The terms of the lease are at Annexure `D' and the relevant terms in respect of extension of lease of contract is as follows : “1.1: Railway Administration will proved 3.9 Tonnes Parcel Space to the lease- holder (in first compartment of Front Brake Van) for the transportation of parcel traffic on four days in a week i.e., Monday, Wednesday, Thursday and Sunday by Train No. 2429 – Rajadhani Express from Bangalore City to Hazarath Nizamuddin with effect from 11-2-09 for a period of three years.

3.1 : The contract for leasing will commence with effect from 11-2-09 and it ill remain valid upto 10-2-12 for a period of three years. The lumpsum lease freight payable for leasing of 3.9 tonnes parcel space (in the first compartment of Front Brake Van) by Train No. 2429 – Rajadhani Express from Bangalore City to Hazrath Nizamuddin shall be Rs.20,877/- (Rupees twenty thousand eight hundred and seventy seven only) for each single journey.

18.0 : Extension of lease is permissible only in case of long term lease of three years, 8 wherein the same can be extended only once by two more years at a leased rate of 25% more than the lumpsum leased freight subject to satisfactory performance by the lease holder, without any penalty for over- loading or violation of any provisions of the contract.”

5. It is the claim of the petitioner that, it has performed the contract for a period of three years satisfactorily and it has not violated any terms of the contract and it has not incurred any penalty for over- loading during the said period of contract. It is the case of the petitioner that the initial lease was extended for a period of three months and thereafter it has not been extended. Hence, the petition is before this Court in enforcing the terms of the agreement in as much as since there are no complaints as against it, it is entitled to extension of two years.

6. I have heard Mr. P.S.Rajagopal, learned Senior Counsel for the petitioners as well as Mr. Sanjay Gowda 9 learned Counsel for the respondents.

7. The main contention of the learned Senior Counsel is that, having regard to the specific wordings of clause18 of the agreement, the petitioner is entitled for extension by two years in as much as during the tenure of three years, it had not attracted any penalty. He submits that, it is a legitimate expectation in as much as the respondent had extended the period for three months.

8. Mr. Sanjay Gowda, learned Counsel submits that three months extension was only to facilitate the respondents in floating a tender, but by this, the petitioner cannot claim that he has a vested right. He further submits that the tender was floated on 17-2-12 and the last date for receiving the tender applications was 13-3-12 and during this interrugnum, the respondents have received the tenders. He submits that 10 it was always open for the petitioner also to participate in the tender process, but he has not submitted his tender. Hence, the question of extending the time does not arise. He further submits that at one point of time there was over-loading in one of the petitioner's consignments.

9. Mr. Rajagopal in response to this submits that, penalty imposed has already been paid.

10. The moot question would be whether a petition under Article 226 of the Constitution could be entertained and the relief sought for can be granted. More so, having regard to the fact that the petitioner proposes to enforce the terms of the agreement regarding extension of the lease. Undoubtedly, the terms of the contract indicate that the period is for three years subject to extension by a further period of two years. I am of the view that the petitioner cannot, in the 11 circumstances, claim a vested right and he is entitled for extension as a matter of right. It also cannot be termed as legitimate expectation, in as much as both the respondents are bound by the terms of the contract. In effect, the petitioner is enforcing one of the clauses of the agreement/contract which is impermissible according to me, under Article 226 of the Constitution.

11. Similar, if not identical question arose for consideration before this Court in the case of Smt. Suguna Rajkumar vs. R.Rajmal and another reported in ILR 2005 KAR. 1583. This Court with reference to the powers of the Court under Article 226 has observed thus : “The following well settled principles emerge from the aforesaid decisions: (i ) Writ Petition is a public law remedy and cannot be invoked for resolution of private law disputes. Therefore, a writ petition is not maintainable for resolution of a property dispute or for declaration of title. 12 (ii) Where there is an alternative effective and efficacious remedy available under law, the High Court will not exercise its jursidiction under Article 226. But, rule of such exclusion is a rule of discretion and where the matter involves enforcement of fundamental right or failure to follow principles of natural justice discretion may be exercised to entertain petition under Article 226. (iii) A writ petition is not intended to replace ordinary remedies by way of suit oir application. Where an alternative remedy was available, a petitioner cannot allow that remedy to be time barred or allow it to be dismissed and then apply under Article 226 contending that he has no other remedy. (iv) A writ petition is not an appropriate remedy where the matter requires determination of disputed questions of fact involving elaborate examination of evidence. But, where fundamental rights are infringed, Writ Petition may, in appropriate cases, be entertained, even if the matter involves determination of disputed questions of fact.”

12. This Court observed that writ petition is certainly not maintainable for resolution of a property dispute or 13 for declaration of title.

13. In the case on hand, it is to be noticed that the petitioner proposes to enforce the terms of the agreement which would be in the nature of a specific performance. The said enforcement can be opposed by the respondent on various grounds, including that the petitioner had attracted penalty for over loading. I am of the firm view that the question relating to the terms of the contract are required to be resolved by filing a suit and not under Article 226 of the Constitution.

14. Mr. Rajgopal, learned Senior Counsel presses into service two decisions of the Apex Court, wherein the Apex Court has observed that a petition under Article 226 can be entertained regarding enforcing of the terms of contract. The Apex Court in the case of Sanjana M. WIG(Ms) vs. Hindustan Petroleum Corpn. Ltd., reported in (2005) 8 SCC 242 has observed – question as to when 14 discretionary jurisdiction is to be exercised or refused to be exercised has to be determined having regard to the facts and circumstances of each case. No hard and fast rule can be laid down in this regard. In the case of ABL International Ltd. and another vs. Export Credit Guarantee Corporation of India Ltd. and others, reported in (2004) 3 SCC 553, the Apex Court has observed that, only in an appropriate case, the writ Court has jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar in regard thereto – a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record will not normally be entertained under Article 226. I am of the view that the terms of the contract cannot be enforced in a petition under Article 226 of the Constitution.

15. Mr. Rajgopal, learned Senior Counsel makes a last 15 attempt and submits that the petitioner may be permitted to participate in the tender process. I am of the view that the petitioner has burnt his bridges. Indeed it was always open for the petitioner to participate in the tender process in as much as the tender was floated on 17-2-12 and the last date was 13-3-12. However, instead of participating in the tender process, it has knocked at the doors of this Court. The interim order is only in respect of item No.6 of the tender. If this Court were to permit the petitioner to participate in the tender, it would alter the terms of the tender itself, in as much as this Court will have to extend the time to participate in the tender process which is impermissible, in as much as the terms and conditions cannot be altered. What is good for goose is also good for gander. Having said so, I am of the view that the relief sought for by the petitioner cannot be granted. 16 All these three petitions stand rejected. mgn/- (sd/-) JUDGE 17