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2011 DIGILAW 499 (JK)

Tramboo Trading Co. v. U. O. I & Ors.

2011-09-19

MANSOOR AHMAD MIR

body2011
1. Respondents issued tender notice dated 05.03.2010, whereby bids were invited from eligible transport contractor for transportation of food grains from Food Corporation Godowns at Jammu to Srinagar and Kupwara. Petitioner in response to the said tender notice submitted the tenders, its bids were accepted and accordingly contract was allotted to the petitioner for transportation of food grains from Jammu to Srinagar and Kupwara for a period of two years vide Communication No. S&C/1(3)/RTC/ Trumboo Trading Co./Jmu-Sgr. / Apptt / 2010-11 dated 26.03.2010. 2. On 06.01.2011 respondent no. 6 invited tenders for allotment of contract for transportation of food grains from Jammu to Lethpora, was allotted to the petitioner vide Communication No. S&C/ 1(3)/RTC/Tramboo Trading Co./ Jmu-Lethpora/Aptt/2010-11 dated 04.02.2011 for a period of two years. It is contended that the petitioner was executing the contracts in terms of the conditions contained therein to the satisfaction of respondents 2 to 6. It is further contended that petitioner earned displeasure of respondent no. 3 because of the fact that the petitioner reported about planting of four trucks clandestinely in the fleet of trucks provided by the petitioner to respondent-Food Corporation of India at Jammu for transportation of food grains and sugar from Jammu to Srinagar. Thereafter respondents issued order No. S&C-6/RTC/T.T.Co./ Jmu-Lethpora/10-11 dated 16.6.2011 including final notices bearing No. S&C-(6)/RTC/TTC/Jammu to Lethpora/2010-11 dated 05.08.2011, No. S&C-(3)/RTC/TTC/Jammu to Srinagar/2010-11 dated 08.08.2011 and No. S&C-(3)/RTC/TTC/Jammu to Kupwara/2010-11 dated 08.08.2011. All the said notices are impugned in this petition and petitioner has questioned the same on the ground of dehorse of rules, without authority, power, and violative of mandate of fundamental rights as guaranteed by the Constitution. Accordingly, it is prayed that all the said notices be declared ultravires, illegal and unconstitutional and respondents be restrained from taking any further action on the basis of said notices. 3. Respondents 2 to 6 have filed reply and resisted the petition on the ground that the parties are governed by the terms and conditions of the contract and question of violation of Article 14 or any other provision does not arise at all. 4. Petitioner has not arrayed M/S Ladakh Road Lines as a party to the writ petition. In terms of communication dated 16.06.2011 (Annexure "J"), both, writ petitioner as well as M/S Ladakh Road Lines have been permitted to carry food grains to FSD Lethpora. 4. Petitioner has not arrayed M/S Ladakh Road Lines as a party to the writ petition. In terms of communication dated 16.06.2011 (Annexure "J"), both, writ petitioner as well as M/S Ladakh Road Lines have been permitted to carry food grains to FSD Lethpora. Thus, the relief as prayed for if granted that will affect the rights of M/S Ladakh Road Lines. 5. On asking, Mr. Jan replied that virtually the writ petitioner and M/S Ladakh Road Lines have already undertaken the supply of food grains to FSD Lethpora and no further supply of food grains is to be made and that is why petitioner is not seeking relief against M/S Ladakh Road Lines, and further prayed that respondents be restrained from passing such order on the basis of impugned notices dated 05.08.2011 and 08.08.2011. 6. It is apt to mention herein that the communication dated 16.06.2011 appears to have been issued in order to comply with the directions passed by the Supreme Court of India and the said communication is also in favour of writ petitioner. It is apt to reproduce last four paras herein: "Despite as above, there has been no improvement in the working pattern of the RTC which has resulted in consequences that FCI can ill afford. The issue concerns timely supplies of food-grains to the beneficiaries under TPDS/OWS schemes and also distribution of food-grains under additional Adhoc category of BPI, beneficiaries under the directions of Hon'ble Supreme Court of India. Since the RTC i.e. M/S Trumboo Trading Co, is not responding to the demands put forth by FCIfor supply of trucks despite final notice issued on 04.06.2011, it has been decided to invoke clause X (c) of MTF and get the transportation work of carriage of food-grains to FSD Lethpora done through other existing RTC i.e. M/S Ladakh Road Lines also at the approved rates of Jammu-Mir Bazar route. Accordingly you are advised to place indent on daily basis to both M/S Trumboo Trading Co. & M/S Ladakh Road Lines for supply of food-grains to FSD Lethpora. The differential amount of transportation rate would be recovered from M/S Trumboo Trading Co." 7. The other three impugned notices are final notices, whereby the petitioner has been asked to improve his performance. & M/S Ladakh Road Lines for supply of food-grains to FSD Lethpora. The differential amount of transportation rate would be recovered from M/S Trumboo Trading Co." 7. The other three impugned notices are final notices, whereby the petitioner has been asked to improve his performance. It is apt to reproduce last para of the said notices herein: Notice dated 05.08.2011 "Keeping in view as above, you are hereby given final opportunity to improve your performance within next 72 hours failing which action under the relevant clauses of the MTF shall be taken. Please treat this as a final notice." Notice dated 08.08.2011 (Jammu to Srinagar) "In light of the above, you are requested to improve your performance forthwith failing which action under the relevant clauses of the MTF shall be taken." Notice dated 08.08.2011 (Jammu to Kupwara) "You are requested to put all your efforts for a better performance by supply trucks as per indent placed by Manager (D) New Godown on day to day basis, failing which action as warranted in MTF would be initiated against you." 8. The question is whether the petitioner can question the notices whereby it has been given opportunity to improve its performance. The answer is negative for the simple reason that the writ petition is pre-mature and no action has been taken against the petitioner so far. My this view is fortified by the judgments of Apex Court in Special Director Vs. Mohammad. Ghulam Ghouse, 2004 AIR SCW 416 and Union of India Vs. Kunisettly Satyanarayana, AIR 2007 SC 906. Even otherwise this writ petition is not maintainable for the simple reason that the parties have entered into contract and are bound by the terms and conditions contained in it. Any dispute between the parties cannot be enforced by the medium of writ petition and the question of violation of Article 14 in such circumstances does not arise. My this view id fortified by the judgments of Apex Court in Premji Bhai Parmar Vs. Delhi Development Authority, (1980) 2 SCC 129 and Radhakrishan Agarwal Vs. State of Bihar, (1977) 3 SCC 457 . It is apt to reproduce para-10 herein: "It is thus clear that the Erusian Equipment & Chemicals Ltd's case (supra) involved discrimination at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all. State of Bihar, (1977) 3 SCC 457 . It is apt to reproduce para-10 herein: "It is thus clear that the Erusian Equipment & Chemicals Ltd's case (supra) involved discrimination at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all. At this stage, no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter-se. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract." 9. Having glance of the above discussion, this writ petition merits to be dismissed. Accordingly, the same is dismissed. However, petitioner is at liberty to seek appropriate remedy, if he so chooses. 10. Interim direction granted vide order dated 19.08.2011 is vacated.