f^ /^ j 'f3Sffi l<^ <^ 'M> ^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (Cwft No.722 of 2009 PETITIONER: M/s Sainath Cargo Vereus RESPONDENTS: Soutti East Cenfral Raihvay & othere ^ ORDER FOR CON81DERATION HON'BLE MR. JUSTICE R.L. JHANWAR ^- POST FOR ORDER ON ^g APRIL. 2009 Sd/- JUDGE ^-4-2009 Sd/- ^.jb^r Judge Sd/- Dhirendra Mishra Judge ^^ w^' iy'v "w ^r^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (Civil) No.722 of2009 PETITIONER: M/s Sainath Cargo, Through its Proprietor - Harish Sharma, S/o Shri R.S. Sharma, Aged about 34 years, R/o H-2/1, Krishna Nagar, Delhl - 51 Versus RESPONDENTS: 1. 2. 3. South East Cenfral Raihway, Through its General Manager, Bilaspur, Distt. Bilaspur(CG) Sr. Divisionat Commereial Manager, South East Central Raihfl/ay, Bilaspur, Distt. Bilaspur (CG) The Executive Dlrector (Chg.), Ministry of Raitways (Railway Board) New Delhi Present: Shri Sunil Otwani, counsel for the petitioner. Ms. Naushina Afrin Ali, counsel forthe respondents. Division Bench: Hon. Shri Dhirendra Mishra & Hon. Shri R.L. Jhanwar. JJ. ORDER (Passed on^^pril, 2009) The following order ofthe Court was passed by Dhlrendra Mishra, J. 1 The petitioner by the instant petitjon has prayed for issuance of writ of certiorari for quashment of the order dated 16-1-2009 ofAnnexure-P/1 issued by respondent No.2. 2. The case of the pet'rtioner is that respondent No.2 vide its notirication of Annexure-P/3 invited offers from the prospectlve biddere for VPU leasing of passenger and express trains for parcel loadjng/unloading and dispatehing for Bilaspur-Tata-BJIaspur passenger and Puri- @ Haridwar express. The petitioner's bid was accepted being hjghest and he was called upon to execute formal agreement vide communteation dated 11-9-2008 (Annexure-P/4) and accordingly, the petitioner executed agreement vide Annexure-P/5 for transportation of parcel for a perjod of 3 years commencing from 21st September, 2008 , to 20 September, 2011. In order to carry out the work order, the petitloner created infrastructure fadlities. The petitioner commenced his contractual work withoutcomplajnt from any comer and continued the same for a period of 3 months when he was served with a nottce of termination of parcel space lease contract i.e. VPU of train No.322/321 BSP-TATA-BSP passenger Vide Annexure-P/1 dated 16-1-2009 whereby he was informed that lease contract of VPU of theabove train fe terminated w.e.f. 15th Febmary, 2009, as per the provisions contained in paragraphs 20 and 20.1 of the parcel lease contract agreement. 3 Respondent No.3 vide his memo dated 6-9-2006 (Annexure-P/^ addressed to the General Managers of All Indian Railways including respondent No.1 sought information about listoftrains in which reom is available to attach VPs either through attachment or replacement of existing coaches. They were ateo directed to undertake feasibility study on the issue and it was specificaHy mentioned that the same would be specially applicable in case of passenger trains which are running over fairly long dlstances or connecting commerclatly important hubs or cltles. In response to the above memo, list of trains of Annexure-P/7 was forwarded and the sald list included passenger train No.322/321. The Chief Commercial Manager of the South Eastern ^»% ^^,^..3 ,^ ^-^ Central Railways vide his memo dated 31st October, 2008 (Annexure- P/8) apprised the Railway Board that tender for train No.322/321 passenger train awarded to the petitioner would generate additional earning of Rs.3.24 crores to the Railways in contractual period of 3 years. 4 Reliance is placed in the matter of Rellance Energy Limtted & Anr. V. Maharashtra State Road Development Corporation Ud. & Ors.1. 5. The respondents in thelr retum have taken a preliminary objection regardSng maintainability of the writ petition on the ground that the petitioner has a statutory, altemative and efTicadous remedy, as there is arbitration clause (para-25) in the terms and conditions of the agreement between the parties, acfcording to whfoh any difference of opinion or dispute between the Railway Administration and the lease holder as to the respective rightsand obligations ofthe parties is to be referred to the sole arbltrator or any other officer appointed by the General Manager of the SECR, Bilaspur, whose decision te to be final, conclusive and binding on the parties. The tease in question was terminated under the directives ofthe Railway Board contained Sn letter dated 11-12-2008 of Annexure-R/1. Clause 21 of Annexure-P/5 confers the Railway Administration the right to terminate the operation of lease contracVagreement for any reason whatsoever after serving one month's nottee to the lease holder. The Railway Board vide its Circular No.12 of 2006 datett 28th March, 2006 had clrculated a comprehenswe parcel leasing poltoy. Clause (A) 3 (II) specifteally prohibits tease of parcel vans in ordtnary passenger trains. Since the 1 2007 AIRSCW 6416 K/ contract was awarded in contravention of the tease poltey of the Raiiways, the same wasterminated as perthe provjsions contained in Clause-20.1 of the lease agreement with a notice of30 days as per the instructions ofthe Railway Board. e. Leamed counsel for the respondents placed reliance in the matter of ABL International Ltd. and another Versus Export Credit Guarantee Corporation of India Ltd. and others2 and also on the order dated 8th September, 2008 passed by this Court in W.P.(C) No.4862 of 2008 in the matter of Rajesh Kumar Singh Versus Union of India and another. 7. It is not jn dispute that after accepting the offer of the petitloner agreement was executed for contract of lease of 25 ton space in VPU . by train No.322/321 for a period of 3 years commendng from 21st September, 2008 to 20th September, 2011~and the same was terminated vide notice of termination of Annexure-P/1. The stand of the respondent Railways is that the workwas awarded to the petitioner in contravention of the policyoftheRaHway Board which specificatly prohibited lease of parcelvans by ordinary passenger trains. Clause 20.1 of the agreement confers right upon the Ratlways to terminate the agreement for any reason by giving a nottee of one month whereas, clause 25 provides for resolution of the dispute arislng out of the contract agreement through arbitration. 8 In the matter of Reliance Ehergy Limited & Anr. (Supra), whlle dealing with the scope of judicial review in contractual matters, it has been held that: (2004) 3 Supreme Court Cases 553 ~) •-^1&. ••••^^ \^-€/- .'^^s...^' / T' "Decisions or acts whteh resutts in unequal and discriminatory treatment, would violate the doctrine oftevel playing fleld" embodied In Articte 19 (1)(g). Tlme has come. therefore, to say that Artjcte 14 which refers to the principle of "equatity" should not be read as a stand alone item but tt shouid be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of imptementation of the aforestated doctrine of "tevel playing fleld". According to Lord Goldsmith - commitment to "mle of law" is the heart of parliamentary democracy. One of the jmportant elements of the "rule of law" is legal certainty. Arttole 14 applies to govemment policies and jf the policy or act of the government. even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional." 9 In the instant case, the petitioner is claiming right artsing out of contract agreement of Annexure-P/5, as the agreement which was for a period of 3 years, has been terminated within a short span of^ 4 months by invoking clause 21 of the agreement. tt is true that there was no complaint against the petitioner of any kind in performance of his contractual obllgation.- On the contrary, the work awarded to the petitioner resulted in substantial additlonal income to the respondent Railways. Hpwever, the agreement has been terminated as the oame was in contravention of the pdlicy of the Railways as contained in circular of Annexure-R/3. The Courts white exercising jurisdtotlon under Arttete 226 of the Constitution of India normally would not interfere in the matter of poltoy decision, as the same is framed ^•fyt^^ '/^r\ ' ri; '••';:^. 'l •1"' 1 (^ ^ keeping in view over all interest ofthe organization as ateo interest of publteat large. 10. In the matter of ABL International Ud. and another (Supra), while considering maintainabiljty of the writ petition under Artlcte 226 of the Constitutjon of Indja, it has been held In paragraph-14 thus: v "It is well known that jfthe partiesto a dispute had agreed to settle their dispute by arbitration and if there is an agreement in that regard, the courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration, unless of course both the parties to the dispute agree on another modeof dispute resolution." 11 In the matter of Rajesh Kumar Singh (Supra), ow own High Court relyjngupon the above dtetum in the case of ABL Intemational Ltd. dismissed the writ petition with an observation that as there is an arbitration clause in the agreement, the writ petition otherwise also is ' not maintainable, with liberty to the petitioner to avail other remedies which may be available to him under the relevant provisions of tew. i2:0n the basis of aforesaid analysis, we are of the opinion that the instant petition under Arttete 226 of the Constltution of (ndia (s not maintajnabte! 13. The writ petitipn, therefore, js dismissed with liberty to the petttloner to avail other remedies which may be available to him under the relevant provisions of law. There shall be no orders as to costs. -v^-^___ Barve Sd/- Dhirendra Mishra Judge Sd/- R.L. Jhanwar Judge