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2010 DIGILAW 553 (CAL)

Jayanta Kumar Ghose v. UNION OF INDIA

2010-05-19

I.P.MUKERJI

body2010
JUDGMENT:- I.P. MUKERJI, J. FACTS: The writ petitioner is a caterer for both the onward and return journey of the train Howrah Amritsar Express (Mail) (in short “the train”). For the onward journey from Howrah to Amritsar the train is numbered as 3005 up whereas for the return journey it is numbered as 3006 Dn. There is a continuing tussle between the petitioner and the railways. It is continuing for years. The railways do not wish to continue any further with him and want to replace him with another contractor. The writ petitioner was allowed to render catering service to the passengers of the train, by a licence dated 2nd January, 2001 granted by the railways. He was allowed to cater to the train, under the said licence, upon payment of Rs.6,27,145/- as security and Rs.12,54,290/- as lump sum licence fee for a period of five years. The agreement provided that renewal would be considered after five years. On the strength of such licence the petitioner started rendering such service from 8th January 2001. Now, the railways took a decision on 19th February 2001 to terminate this contract on the ground that their officials granting the licence had done so in violation of some policy directives. The writ petitioner challenged such decision by filing a writ application No.1789 of 2001 before this court. That writ application was allowed by MHS Ansari, J. on 15th October 2001 by declaring the termination to be invalid and directing the railways to execute a formal agreement and “not to pass any order affecting the selection of the petitioner as the licensee for catering/bending through the pantry cars of Howrah - Amritsar Mail (3005 up – 3005 down)”. From that order the railway authorities preferred an appeal before a division bench of this court being APO No. 469 of 2003. The court of appeal held that the respondents would be guided by the 1992 Catering Policy. The order said that the writ petitioner would be obliged to pay licence fee in terms of the 1992 policy. The appeal was disposed of. The date is very important. It was 31st August 2006. By that time the said agreement for five years had come to an end by efflux of time. Therefore, the Appeal Court just confined itself to the question of payment of licence fee. The appeal was disposed of. The date is very important. It was 31st August 2006. By that time the said agreement for five years had come to an end by efflux of time. Therefore, the Appeal Court just confined itself to the question of payment of licence fee. Nevertheless, I find that the Court held that the question of renewal could be considered in this writ application. By that time the present writ application had been filed. Meanwhile, sometime in 2005 the railways announced a new catering policy. Under that policy new tenders were required to be invited by them for consideration, which included the catering service in the train. When this new tendering process was sought to be finalized, it seems that the writ petitioner came to know that the tender of Mr. Deb’s clients, who seek to be added as a party in these proceedings, by an application for addition of party, was being allegedly accepted. Promptly, he instituted this writ application, where my brother Girish Chandra Gupta, J. was pleased to pass an interim order on 18th October 2005 as follows: “After hearing the learned advocate for the parties, the petitioner is granted liberty to participate in the tender without prejudice to his rights and contentions in the pending application. The tender may be processed but no work order shall be issued till after the vacation etc.” Now, by virtue of that interim order the writ petitioner is still continuing as a caterer in the train. Further five years from 2005 have passed and the railways are absolutely desperate to get rid of the writ petitioner and award the contract to whoever would be, according to them, successful in the tendering process. One fact is relevant. Although Mr. Deb’s clients were allegedly successful in the 2005 tender, that tender has been cancelled as submitted by Mr. Amitesh Banerjee, because by virtue of the interim order passed in this writ application, the writ petitioner has continued to be contractor for almost the whole period of the stated life of the 2005 tender (up to almost October, 2010). Meanwhile, it is submitted on behalf of the respondent railways that a new policy is forthcoming and that they should be allowed to implement the new policy. Before the proposed policy is effective, there is a direction by the Railways that existing catering arrangements should be terminated. Meanwhile, it is submitted on behalf of the respondent railways that a new policy is forthcoming and that they should be allowed to implement the new policy. Before the proposed policy is effective, there is a direction by the Railways that existing catering arrangements should be terminated. Discussions and findings: Before proceeding further with this matter the application of Mr. Deb’s clients one M/s. Roop Caterers, a partnership firm, for being added as party has to be disposed of. This application is G.A. No.1208 of 2009. This applicant participated in the 2005 tender and is said to have submitted a bid of Rs.56,51,000/- as licence fee for providing catering service in the train. It is said by them that because of the interim order dated 18th October, 2005 passed in this writ application their bid could not be accepted. This application for their addition as a party has been affirmed on 4th May, 2009. The alleged case of the applicant is that if this interim order is vacated by passing of a final order in this writ, dismissing it, the applicant will have a chance of being declared the successful bidder. The 2005 tender was for a period of five years and that automatically the life of the tender has come or is coming to an end and that it has been cancelled. The offer of the applicant and their prospects of succeeding with that offer have or will soon come to an end. Moreover, the Railways are on the way to announcing a new catering policy shortly and that all existing tenders have been cancelled. In my opinion, an applicant for addition of party must have a subsisting right to be so added not on the date of filing of the application but on the date of its consideration. In view of cancellation of the existing tenders and the proposal for introducing a new policy by the Railways, the applicant does not have any right whatsoever, to be added as party in these proceedings. That is so, because, whether the writ petitioner wins or loses, the applicant does not have any likelihood of being considered for being awarded a contract of catering on the basis of his said bid. That is so, because, whether the writ petitioner wins or loses, the applicant does not have any likelihood of being considered for being awarded a contract of catering on the basis of his said bid. Since the application of the applicant, appeared with the above writ application, for hearing, I permitted the applicant to make arguments on the merits of the writ application, as this application for addition was under consideration. Nevertheless, considering my above view the application for addition of party has to be dismissed and I have taken no notice of the submissions made by this applicant, opposing the writ application. It is quite plain on consideration of the above facts that the only relief that the writ petitioner could urge in this writ application, and which Mr. Saktinath Mukherjee, the learned Senior Advocate, appearing for the petitioner, has in fact urged, is that his client is entitled to a “renewal” of the agreement that was entered into between the writ petitioner and the respondent railways in 2001. It is very trite that upon termination of an agreement, which was done in this case, future rights and obligations of the parties to the agreement are discharged. But by the final order dated 15th October, 2001 in W.P. No. 1789 of 2001, this Court directed the railways to execute a formal agreement and not to disturb the operation of the writ petitioner as a caterer. Therefore, the order of MHS Ansari, J. dated 15th October, 2001 was like a decree for specific performance of the contract which had been terminated by the railways. The life of that agreement came to an end in 2005 and there was no renewal of it. Thereafter, on 18th October, 2005 the said interim order was passed that the tender may be processed, but no work order was to be issued in the fresh tender process of 2005. Now, that interim order has been continued from time to time and is still subsisting. After passing of that interim order, the appeal from the order dated 15th October, 2001 by MHS Ansari, J. in W.P. No. 1789 of 2001, came up for final disposal before the Court of Appeal when the Court observed that the writ petitioner was continuing as a catering contractor. After passing of that interim order, the appeal from the order dated 15th October, 2001 by MHS Ansari, J. in W.P. No. 1789 of 2001, came up for final disposal before the Court of Appeal when the Court observed that the writ petitioner was continuing as a catering contractor. It directed the writ petitioner to pay the outstanding licence fee in terms of the 1992 policy but directed that further “renewal of the licence” was to be considered by the Court in this writ application. Meanwhile, almost four years have rolled by and this writ application is under consideration. Whatever rights were granted by the final order dated 15th October, 2001 of MHS Ansari, J. ceased to exist after the life of the original contract. The life of the original contract expired sometime in October 2005. By virtue of an interim order passed in this writ the writ petitioner is still continuing to function as a caterer, although there is no renewal of the original contract, nor a fresh contract between him and the railways. Therefore, from October 2005 till date the writ petitioner is continuing on the basis of a long expired contract. It is quite plain that upon the expiry of the original contract the writ petitioner had no right of automatic renewal of that contract in his favour. If he had to continue, he was to do so on the basis of a new contract between him and the railways. It is very trite that for being granted a new contract the writ petitioner has to participate in the tendering process and compete with all other competitors. After expiry of the original contact the subsequent tendering process could not be effected because of the said interim order in this writ. The life of that tendering process would also be over by October 2010. There is nothing shown to me to justify the writ petitioner holding on to the instant arrangement of providing catering service in the train and continuing to do so for an indefinite time. It is submitted on behalf of the railways that a fresh policy is forthcoming, although it is not known to them, when. Whatever may be the case, the writ petitioner has got no right to continue with that catering service anymore. But I do appreciate that for whatever reason he has been continuing in such capacity for a very long time. Whatever may be the case, the writ petitioner has got no right to continue with that catering service anymore. But I do appreciate that for whatever reason he has been continuing in such capacity for a very long time. When the writ petitioner has been allowed by orders of this Court to continue till almost the end of the life of the current tender process, there would be no useful purpose in stopping his operation now. Completion of the 2005 tendering process now would, in my opinion, create unnecessary complications. The first unnecessary complication is, as I foresee, if sufficient time is not granted to the writ petitioner to wind up his catering operations in that sector of the railways. Secondly, as submitted by Mr. Chatterjee, supplemented by Mr. Banerjee, that a new policy is soon forthcoming. If some rights are created during the currency of the 2005 tendering process, there would be difficulty in implementing the new policy, which is said to contain entirely new conditions for catering service in railways. Further, since the writ petitioner has worked continuously for this length of time, some opportunity should be given to him to arrange his affairs and quit. Therefore, in the circumstances, I dispose of this writ application by directing the railway authorities which includes Indian Railway Catering and Tourism Corporation Limited to allow the writ petitioner to continue in the same way as he is now operating till the expiry of the period of the 2005 tendering process or 31st October, 2010 whichever is later. Licence fee at the rate paid by him, further to the Order of the Appeal Court dated 31st August, 2006 must be paid. Thereafter, all rights of the petitioner to provide catering services in the Howrah – Amritsar Mail will come to an end without any further act to be done by any party. The writ petitioner must vacate the railway establishment by that time with all his men and materials. In default the railways will be at liberty to take the help of the police which includes Railway Police to remove the petitioner and his men and materials, using minimum force. The writ application is accordingly disposed of. The application for addition of party G.A. No. 1208 of 2009 is dismissed. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.