CWP No. 11046 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 11046 of 2010 Date of decision December 9, 2011 M/s JBS Carrier Service ....... Petitioner Versus Northern Railway, Baroda House, New Delhi through the Chief Commercial Manager and another ........Respondents CWP No. 11891 of 2010 M/s BS Carrier Service ....... Petitioner Versus Northern Railway, Baroda House, New Delhi through the Chief Commercial Manager and another ........Respondents CWP No. 19338 of 2010 Deepak Khandelwal ....... Petitioner Versus Northern Railway, Baroda House, New Delhi through the Chief Commercial Manager and another ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Sanjiv Bansal , Advocate for the petitioner Mr. Karamjit Verma, Advocate for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. All the writ petitions pertain to a similar nature of CWP No. 11046 of 2010 2 dispute. The facts are taken from CWP No. 11046 of 2010 and the point of adjudication will be the same although rates and time of extension of contract period are different. The contract period of lease of freight of goods which the petitioners in CWP No. 11046 of 2010 from the Railway Administration expired on 29.1.2010 and there was an extension provisionally for a further period of three months. No specific rates were again made during these extensions and the petitioner claims that he was led to believe that it was at the same rates. Subsequently on a plea for extension, a letter of acceptance was given by the Railways by the office of the Senior Divisional Commercial Manager on 13.4.2010 contending that the lease would be 25% more than the lumpsum leased freight rate already accepted by the competent authority plus 2% development surcharge. The contract was to be drawn up on the terms of acceptance. 2. However, after the communication of acceptance on 13.4.2010 a fresh letter was issued by the Senior Divisional Commercial Manager on 4.6.2010 contending that the rate would be `10772/- plus 2% development charges and that would be applicable from 30.1.2010 itself i.e.from the date prior to the acceptance letter specifying the rates and including the period of three months that was provisionally done. The petitioner has a grievance on three aspects; i) the rate could not have been at `10772/- which was contrary to what was contained in the letter of acceptance and ii) it could not have been w.e.f. 13.1.2010 during the time when no specific rate increase was even contemplated when the extended period of lease was given and iii) the petitioner was required to pay full freight for non-utilization period from 30.4.2010 till the date when the payments for loading was to be given. 3. The reason for the increase from what was contained in the letter of acceptance that was proffered in the reply contained in the letter of the Senior Divisional Manager, Northern Railway CWP No. 11046 of 2010 3 was the wrong reading of the charges as leviable for two years adding 25% plus 25% of the existing rate of reserve price fixed thereafter which ever was higher. This was admitted to be a mistake and it was only 25% plus 2% and the reference to 25% was not correct. Further justification was that the fresh contracts were invited through tenders, there had been offers for higher rates and therefore same rates were also directed to be collected from the petitioner. 4. Any alteration in the terms after the letter of acceptance on 13.4.2010 ought to be impermissible if the letter of acceptance had merely provided for 25% increase plus 2% development surcharge, that concluded the bargain between the parties and the issue could not have been reopened otherwise than for execution of a formal agreement of lease as contemplated in the letter of acceptance. The fact that higher rates could be garnered by fresh tenders ought not to have been a ground for rewriting the terms already concluded in the letter of acceptance. I will therefore deny to the respondents any right to claim at a rate more than what was stipulated in the letter of acceptance. I cannot also allow for increased rates to be applicable for the original extended period of three months for, if such a right was not reserved, the petitioner was entitled to assume that the extension was being given on the same terms which had already been operational between the parties. The issue of payment of charges during the non-utilization period from 30.4.2010 till 4.6.2010 could be justified if the delay had been caused at the instance of the petitioners. On the other hand, if after the letter of acceptance the terms were sought to be modified on 4.6.2010 and permission was given for the extended period after some time gap, the Railways cannot take advantage of their own lapse of delay and demand full freight charges for a non-utilization period. It will be untenable to make such a demand, when the petitioner has not been shown to be responsible for non-execution of CWP No. 11046 of 2010 4 contract in terms of letter of acceptance. 5. The impugned notices are quashed and the respondents are mandated to enter into a contract on the terms specified in the letter of agreement and issue the same to the petitioner within a period of four weeks from the date of this order. 6. CWP No.19338 of 2010 is different from the other two cases only insofar as an extension which was sought for by the original lessee for a period of two years was permitted if the party was ready to give a higher rate received in tender namely of `30850/-. This letter dated 20.8.2010 issued by the Chief Commercial Manager which is in the nature of counter offer is said to have been accepted by the petitioner and the same finds expressed in the inter se communication of the authorities between the Divisional office and the Chief Commercial Manager brought through Annexure P-5. This rate could not have been further altered to the detriment of the petitioner as was sought to be done through the impugned proceedings in CWP No. 19338 of 2010. This rate which is stipulated at `30850/- plus 2% development surcharge alone shall be leviable for the contract period for the petitioner in CWP No.19338 of 2010. The respondents are bound to provide the lease on the contractual term as referred to above which shall be done through appropriate documentation within a period of four weeks from the date of receipt of copy of this order. 7. The writ petitions are allowed. (K. KANNAN) JUDGE December 9, 2011 archana