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2013 DIGILAW 391 (JK)

Chandigarh Poultry Centre v. Union Of India

2013-07-09

ALI MOHAMMAD MAGREY

body2013
1. The petitioner has filed this petition seeking issuance of writ of certiorari for quashing communication dated 12.01.2013 read with communication dated 31.01.2013 issued by respondent no.3 whereby the request of the petitioner to transfer his Contract Carrying Capacity from Northern Command to the Western Command to the extent of Rs. 8.50 Crores has been rejected. The petitioner has further prayed for issuance of writ in the nature of Mandamus for commanding the respondent authorities to transfer the Contract Carrying Capacity of Rs. 8.50 Crores to the Western Command thereby permitting the petitioner to participate in the tender process and, accordingly, issuing tender documents to him. 2. Briefly put, the case of the petitioner is that it (a proprietorship concern) is a Class A Contractor registered with the Northern Command. Its initial Contract Carrying Capacity (for short CCC) was 18 Crores. However, pursuant to a written request made by the petitioner, its CCC to the extent of 5 Crores was transferred on 06.11.2010 to the Western Command. Thus, as from 06.11.2010, it was left with the CCC of 13 Crores with the Northern Command. On 03.10.2012, the petitioner made an application to respondent no.3 requesting therein that its transferred CCC of 5 Crores to HQ Western Command be enhanced to Rs. 13.5 Crores. In the aforesaid communication, the petitioner made reference to paragraph 16(b)(e) of Government of India letter no. PC / RAKSHA / 63060 / Q / ST-5 / 3633 / D(QS) dated 26 September, 2006 governing the subject, wherein it is provided that if a contractor wishes to get upto 75 percent of his CCC transferred to other Command, his Carrying Capacity will not be revised more than once in two years. The petitioner in the said communication stated that the period of two years (from 06.11.2010 to 05.11.2012) in its case would be completed in the processing of its case. 3. It appears that, in response to the aforesaid written request of the petitioner, respondent no. 3 addressed communication dated 08.10.2012 intimating to the petitioner that "MGASC of the present Command, where the contactor is initially registered will, entertain request for transfer of capacity to another Command(s) only when he has seen the performance of the contractor for at least one year in his Command, with effect from the date of his last revision of CCC, if any". 4. 4. The petitioner replied the aforesaid letter of respondent no.3 vide its communication dated 20.10.2012, inter alia, stating therein that the condition relied upon was not applicable in its case as the same was seen at the time of transfer of its CCC in the year 2010 and that no adverse report was found at that time. The petitioner further mentioned in the aforesaid communication that the period of two years will be completed on 05.11.2012, i.e., 15 days after the date of the said communication and that these 15 days would also be consumed in processing the documents with Western Command. The petitioner again made a reminder to the same effect on 05.11.2012, the date the period of two years was completed from the date of last revision in the CCC. 5. The aforesaid communication dated 03.10.2012 followed by the reply dated 20.10.2012 and reminder dated 05.11.2012 remained pending with respondent no.3 for quite long and no decision was taken on the request so made. Aggrieved by the inaction of respondent no.3, petitioner filed OWP no.1564/2012 which came up for consideration before a Coordinate Bench of this Court on 04.01.2013. During the course of hearing, the learned CGSC representing the respondents therein, made a statement that the Union of India may not be averse to take requisite decision on the petitioner's request for transfer of CCC within a week's time. Consequently, the writ petition was disposed of on 04.01.2013 itself with a direction to the respondents to take requisite decision as warranted under Rules in force within a week's time. 6. Ultimately, respondent no.3 rejected the request of the petitioner vide his communication dated 12.01.2013. The petitioner, responding to the reasons supplied in the rejection order, addressed communication dated 21.01.2013 to respondent no.3, who vide his letter dated 31.01.2013 again rejected the request of the petitioner. The aforesaid letters, among others, disclose the following two reasons which had weighed with respondent no. 3 to turn down the request of the petitioner: "(a) The firm had last transferred its Contract Carrying Capacity to Headquarter Western Command on 06 Nov 2010, hence, it was becoming eligible for transfer of Contract Carrying Capacity on or later than 05 Nov 2012 only. 3 to turn down the request of the petitioner: "(a) The firm had last transferred its Contract Carrying Capacity to Headquarter Western Command on 06 Nov 2010, hence, it was becoming eligible for transfer of Contract Carrying Capacity on or later than 05 Nov 2012 only. (b) The time window for transfer of Contract Carrying Capacity laid down vide PC Raksha letter stipulates that `No revision / transfer of Contract Carrying Capacity will be permitted once the tendering process in any Command has commenced, i.e., from 01 Apr to 14 June and 01 Oct to 30 Nov every year'. However the time window for transfer of Contract Carrying Capacity had got reduced this year as per the tendering programme issued vide IHQ of Mo (Army) letter No. 63095/Q/ST5 dated 13 Aug 12. The tendering process in Southern Command had already commenced by 1st call having been held on 29 Oct 2012 i.e. before 05 Nov 12, the date by which the firm would have become eligible for transfer of Contract Carrying Capacity as per the condition given at Para 2(a) above." The petitioner has challenged the aforesaid two communications, dated 12.01.2013 and 31.01.2013, rejecting his request for transfer of his CCC in this writ petition. 7. Respondents have filed their objections, reiterating what is contained in the rejection orders passed by respondent no.3. 8. The writ petition is admitted to hearing and with consent of the learned counsel for the parties, it was taken up for final disposal. 9. Heard and considered the matter. 10. There is no dispute that the subject matter of controversy is governed by the provisions contained in Clause 16 under Chapter II, Registration and Re-valuation of Contractors and Contract Carrying Capacity, issued by Government of India, Ministry of Defence letter No. PC / RAKSHA / 63060 / Q / ST-5 / 3633 / D(QS) dated 26 September, 2006 read with GOI, MoD letter no. PC / RAKSHA / 63036 / Q / ST-5 dated 01 September, 2009. In fact, both the parties rely on the policy and procedure given in the aforesaid Clause 16. Therefore, it becomes imperative to examine the same. It is extracted below: "16. A Contractor can apply for transfer of his contract carrying capacity from one Command to another only after three years of his initial registration. In fact, both the parties rely on the policy and procedure given in the aforesaid Clause 16. Therefore, it becomes imperative to examine the same. It is extracted below: "16. A Contractor can apply for transfer of his contract carrying capacity from one Command to another only after three years of his initial registration. In case a Contractor applies for transfer of his capacity from one Command to another, the following procedure will be followed: a) MGASC of the parent Command, where the Contractor is initially registered will entertain request for transfer of capacity to another Command(s) only when he has seen the performance of the Contractor for at least one year in his Command, with effect from the date of his last revision of contract carrying capacity, if any. b) When a Contractor has shown satisfactory performance for the last one year, based on the criteria laid down vide Integrated Headquarters of MoD (Army) letter No. 63148/Q/ST-5 dated 17 December 2003 [Revision of Performance Report : ASC Contractors], and wishes to get 75 percent of his capacity transferred, MGASC Command will ask him to specify the amount and the Command(s) to which he wants his capacity to be transferred. MGASC Command will then forward his recommendations within 45 days of receipt of such application along with the application of the Contractor to the MGASC of the Command to which the Contractor wishes the capacity allocated. A copy of this communication along with copy of the application of the Contractor will also be sent to Integrated Headquarters of MoD (Army) (ST-5). While forwarding the recommendations, MGASC of the parent Command will invariably forward the details of contracts held by the applicant in his Command during the last three years and his performance. In case the Contractor's performance has been unsatisfactory, MGASC of the parent Command has the right to deny the Contractor the transfer of his contract carrying capacity for additional two years based on the performance report on the contracts undertaken by him and recommendations of the technical heads of lower formations on such performance reports. c) ................ d) The capacity once transferred from the parent Command will be reduced from his overall contract carrying capacity of the parent Command and will be awarded contracts according to the revised contract carrying capacity. c) ................ d) The capacity once transferred from the parent Command will be reduced from his overall contract carrying capacity of the parent Command and will be awarded contracts according to the revised contract carrying capacity. He may be awarded contracts in other Command(s) based on the contract carrying capacity transferred by the MGASC of the transferred Command. e) The option regarding quantum of contract carrying capacity once exercised would be final. No revision / transfer of the contract carrying capacity will be permitted once the tendering process in any Command has commenced, i.e., from 15 Dec to 31 March and 15 June to 30 Sep every year (Amended as 01 Apr to 14 June and 01 Oct to 30 Nov). The contract carrying capacity, however, will not be revised more than once in two years. This will include all kinds of revision of contract carrying capacity, i.e., increase / decrease or transfer of contract carrying capacity to any Command, re-verification etc. f) ................. g) ................. h) Each time the contract carrying capacity is transferred from one Command to the other, Integrated Headquarters of MoD (Army) will be kept informed. However, if the request of the Contractor for transferring capacity and for items requested for is turned down by one of the MGASC, the entire case giving detailed reasons for such a decision will be communicated to DGST, Integrated Headquarters of MoD (Army) for his directions." 11. From a bare reading of the principal clause 16, quoted above, it becomes evident that a Contractor can apply for transfer of his CCC from one Command to another only after three years of his initial registration. There is no dispute in this regard involved in the present petition. 12. The controversy involved in this petition is about the subsequent transfer. In this connection, the provisions contained in sub-clauses 16 (a) and (e) assume importance. Sub-clause (e) states that MGASC concerned will entertain request for transfer of CCC to another command only when he has seen the performance of the Contractor for at least one year. Sub-clause (e) states that the CCC will not be revised more than once in two years. 13. In the present case, the last revision of the petitioner's CCC was done on 06.11.2010. In view of the provisions of sub-clauses (a) and (e) referred to above, he was not eligible for such CCC till 05.11.2012. Sub-clause (e) states that the CCC will not be revised more than once in two years. 13. In the present case, the last revision of the petitioner's CCC was done on 06.11.2010. In view of the provisions of sub-clauses (a) and (e) referred to above, he was not eligible for such CCC till 05.11.2012. This is admitted by the parties. It is also the admitted case of the parties that the petitioner had made the application for transfer of his CCC on 03.10.2012. 14. It may be observed here that the request of the petitioner was initially rejected vide communication dated 12.01.2013. One of the reasons supplied therein was as under: "(a) The firm is already operating contracts worth Rs. 10.86 Crore in Northern Command. These contracts are operational till 31 Mar 2013 and 30 Sep 2013 at various stations. Before completion of contract period of these contracts, the firm's contract carrying capacity available with Northern Command can not fall below Rs. 10.86 Crore. Therefore, as on date of receipt of firm's request, the firm had only approximately Rs. 2.14 Crore spare contract carrying capacity available for transfer to Western Command." Though the petitioner in paragraph 18(v) of the petition has contradicted the above figures, but I am afraid, if this Court in exercise of its writ jurisdiction can hold an enquiry into such disputed facts. 15. I also notice that sub-clause (e) prescribes an inbuilt mechanism in the event the request of a Contractor for transferring CCC is turned down by the MGASC. It provides that the entire case giving detailed reasons for such a decision will be communicated to DGST, Integrated Headquarters of MoD (Army) for his directions. 16. Certain other very important factors and developments have intervened. Firstly, it is impossible to go back in time and require the respondents to consider the request of the petitioner for transfer of his CCC within the time window of 01.10.2012 to 30.11.2012; secondly, half of the tendering year 2013-14 has already elapsed and, in fact, the petitioner has even lost the time window between 01.04.2013 and 14.06.2013; thirdly, meanwhile, the petitioner's total CCC in Northern Command has been increased from 18 Crores to 48 Crores. In light of these facts, it would not be possible and, in fact, it would be practically difficult to relegate the petitioner back to the date he had made his initial application, i.e., 03.10.2012, for transfer of his CCC to Western Command. 17. In the aforesaid circumstances, the issues raised in this petition are rendered only academic in nature and the reliefs claimed have become redundant. Therefore, I deem it appropriate to dispose of this writ petition providing as under: "That the petitioner, in view of the intervening factors and developments, would be free to make a fresh application to the MGASC, Northern Command for transfer of his CCC to the Western Command to the extent he may wish, within the limit of 75%. The said application, if made, shall be processed as a special case outside the time window 01.10.2013 to 30.11.2013, but the decision thereon shall be communicated to the petitioner only within the above time window, preferably within the first week of the time window, so that the prescribed time schedule / CCC transfer and tendering calendar is not disturbed in any manner. In the event, the request of the petitioner is turned down, he shall be free to approach the DGST, Integrated Headquarters of MoD (Army) for his directions. The DGST, in that event, will give an effective hearing to the petitioner before making any such directions." 18. Parties to bear their respective costs.