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#33
%20.07.2011
Present: Mr. Ashish Mohan for the petitioner.
Mr. R.V.Sinha with Mr.R.N.Sinha for the respondent.
+CM No.10279/2011
* Allowed subject to all just exceptions.
W.P.(C) No.5079/2011 & CM No.10278/2011
* By this petition filed under Article 226 & 227 of the Constitution of India, the petitioner seeks to direct the respondent to unconditionally extend the lease of the petitioner in respect of parcel space in Train No.12218/12217 from Chandigarh to Ernakulum and back w.e.f. 22.7.2011 till 21.7.2013 in terms of Clause (E) of the
Comprehensive Parcel Leasing Policy and clause 18 of the Contract between the parties.
Mr.Ashish Mohan, counsel appearing for the petitioner submits that the issue involved in the present writ petition is squarely covered by the decision of this Court in W.P.(C) No.7289/2010 titled Kishan
Freight Forwarders vs. UOI. Counsel, thus, prays that the necessary directions be passed in the present case also.
Mr.R.V.Sinha, Advocate for respondent appears on advance notice and does not dispute the said position.
Heard.
2011:DHC:17397
The lease of the petitioner in the present case has not been extended by the respondent based on the earlier FM circular No.3 of
2010 based on which the reserve price of one VPH of this train
No.l2218/12217 was fixed at scale "R" and the same has now been increased to ~1,85,582/- per round trip. The said circular was clarified by subsequent FM circular No.6 of 2010 dated 18th March, 2010 wherein as per clause 2.1 of the same it was made clear that in cases of existing contracts which are in operation and agreement/contract signed before issue of Freight Marketing Cirlcular No.03 of 2010, i.e., prior to gth February, 2010 shall be governed by the policy guidelines applicable before issue of Freight Marketing Circular No.03/2010.
Placing reliance on the subsequent clarificatory circular, this
Court in Kishan Freight Forwarders (Supra) in para 19 held as under:-
"19. Therefore, learned counsel for the Respondents' is not right in his contention that on account of the change in the policy the extension dause no longer held good. The contracts with the
Petitioners have to be consistent with the CPLP as clarified subsequently by Circular No.6 of 2010 of the Railway Board.
Since these are binding on the Northern Railway, the Petitioners could justifiably insist that their leases should be extended for two years with an increase in the lease rate by 25%. These contracts, referable as they are to the CPLP and policy circulars of the Railway Board, cannot be characterized as private contracts.
One party to the contracts is an instrumentality of the State and as explained in Kumari Shrilaekha Vidyarthi its actions even in the contractual sphere have to satisfy the test of non- arbitrariness under Article 14 of the Constitution. In the instant cases the Northern Railway has unilaterally decided to depart from Clause (E) of the CPLP. The so called consent of the
Petitioners to conditional extension was in fact given under protest as is evident from the letter dated 19th October, 2010 which has been extracted hereinbefore."
This Court is not taking any different view since the present case being squarely covered by the said
%20.07.2011
Present: Mr. Ashish Mohan for the petitioner.
Mr. R.V.Sinha with Mr.R.N.Sinha for the respondent.
+CM No.10279/2011
* Allowed subject to all just exceptions.
W.P.(C) No.5079/2011 & CM No.10278/2011
* By this petition filed under Article 226 & 227 of the Constitution of India, the petitioner seeks to direct the respondent to unconditionally extend the lease of the petitioner in respect of parcel space in Train No.12218/12217 from Chandigarh to Ernakulum and back w.e.f. 22.7.2011 till 21.7.2013 in terms of Clause (E) of the
Comprehensive Parcel Leasing Policy and clause 18 of the Contract between the parties.
Mr.Ashish Mohan, counsel appearing for the petitioner submits that the issue involved in the present writ petition is squarely covered by the decision of this Court in W.P.(C) No.7289/2010 titled Kishan
Freight Forwarders vs. UOI. Counsel, thus, prays that the necessary directions be passed in the present case also.
Mr.R.V.Sinha, Advocate for respondent appears on advance notice and does not dispute the said position.
Heard.
2011:DHC:17397
The lease of the petitioner in the present case has not been extended by the respondent based on the earlier FM circular No.3 of
2010 based on which the reserve price of one VPH of this train
No.l2218/12217 was fixed at scale "R" and the same has now been increased to ~1,85,582/- per round trip. The said circular was clarified by subsequent FM circular No.6 of 2010 dated 18th March, 2010 wherein as per clause 2.1 of the same it was made clear that in cases of existing contracts which are in operation and agreement/contract signed before issue of Freight Marketing Cirlcular No.03 of 2010, i.e., prior to gth February, 2010 shall be governed by the policy guidelines applicable before issue of Freight Marketing Circular No.03/2010.
Placing reliance on the subsequent clarificatory circular, this
Court in Kishan Freight Forwarders (Supra) in para 19 held as under:-
"19. Therefore, learned counsel for the Respondents' is not right in his contention that on account of the change in the policy the extension dause no longer held good. The contracts with the
Petitioners have to be consistent with the CPLP as clarified subsequently by Circular No.6 of 2010 of the Railway Board.
Since these are binding on the Northern Railway, the Petitioners could justifiably insist that their leases should be extended for two years with an increase in the lease rate by 25%. These contracts, referable as they are to the CPLP and policy circulars of the Railway Board, cannot be characterized as private contracts.
One party to the contracts is an instrumentality of the State and as explained in Kumari Shrilaekha Vidyarthi its actions even in the contractual sphere have to satisfy the test of non- arbitrariness under Article 14 of the Constitution. In the instant cases the Northern Railway has unilaterally decided to depart from Clause (E) of the CPLP. The so called consent of the
Petitioners to conditional extension was in fact given under protest as is evident from the letter dated 19th October, 2010 which has been extracted hereinbefore."
This Court is not taking any different view since the present case being squarely covered by the said
JUDGMENT
of this Court, therefore, the petitioner deserves to be granted the same relief.
It is accordingly directed that the lease of the petitioner be extended for a period of two years from the date of expiry of the original lease in terms of Clause (E) of the CPLP as clarified by the
Railway Board Circular No.6 of 2010 dated 18th March, 2010 by the
Northern Railway. Appropriate orders in terms of this judgment will be issued by the DRM, Northern Railway within a period of four weeks from the date of this order.
The writ petition and CM No.l0278/2011 are disposed of in the above terms with no order as to costs.
JULY 20, 2011
Bisht l
KAILASH GAMBHIR, J
It is accordingly directed that the lease of the petitioner be extended for a period of two years from the date of expiry of the original lease in terms of Clause (E) of the CPLP as clarified by the
Railway Board Circular No.6 of 2010 dated 18th March, 2010 by the
Northern Railway. Appropriate orders in terms of this judgment will be issued by the DRM, Northern Railway within a period of four weeks from the date of this order.
The writ petition and CM No.l0278/2011 are disposed of in the above terms with no order as to costs.
JULY 20, 2011
Bisht l
KAILASH GAMBHIR, J