HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.21253 OF 2010 ORDER: This writ petition has been instituted seeking Writ of Mandamus declaring the action of the second respondent-Senior Divisional Commercial Manager, South Central Railway, Secunderabad in refusing to refund the amount of Rs.2,38,057/- with interest thereon at 13% per annum from 17.02.2009 as illegal, unjust and contrary to law. 2. The writ petitioner responded to the ‘quotation’ floated by the South Central Railway for operating the vehicle parking stand at Lingampally Railway Station for three months period. The petitioner’s quotation dated 11.02.2009 was accepted and he has been conveyed the acceptance of his quotation through a communication dated 14.02.2009 of the Senior Divisional Commercial Manager, Secunderabad which is placed as Ex.P.2 at page 13 of the paper book. He was to operate the stand between February 2009 to May 2009. Accordingly, he was directed to pay the ‘lump sum license’ fee together with income tax and surcharge thereon. However, the earlier contractor by name, Sri M. Ankaiah Chowdary, has not handed over the stand to the petitioner on 20.02.2009. It has now transpired that the Railways have taken possession of the stand from the said Ankaiah Chowdary and it is manned by the departmental staff from 28.02.2009 onwards. In that context, a communication bearing date “04.02.2009” has been sent up to the petitioner advising him to take over the vehicle parking stand immediately, failing which the lump sum license fee of Rs.2,32,800/- and Income Tax of Rs.5,257/- paid on 17.02.2009 by the petitioner will be forfeited and that he will also be blacklisted from participating in railway contracts. This communication appears to have been received by the petitioner on 05.03.2009. The petitioner has drawn a detailed representation on 06.03.2009 protesting against the proposed action of the respondents. Learned counsel Sri A.K. Jayaprakash Rao, would submit that this communication is clearly anti dated. There are two references quoted in the said communication. The first reference relates to the two communications said to have been sent up by the Senior Divisional Commercial Manager, Secunderabad on 17.02.2009 and 25.02.2009. At reference No.2, the letters of the petitioner dated 20.02.2009 and 24.02.2009 were quoted. In the body of the said letter, it is specifically averred that the vehicle parking stand is manned by the departmental staff from 28.02.2009. It is therefore manifestly clear that the date “04.02.2009” put on this communication is a case of a simple typographical error, as it has referred to the events that took place right upto 28.02.2009. It ought to have read as “04.03.2009”. The undisputed fact that remains is that the petitioner has received this communication. In normal course, to show his bonafidees, he should have rushed as soon as he has received this communication to take over the vehicle parking stand. Instead, he made a detailed representation on 06.03.2009 demanding return of the money paid by him for the purpose of contract mentioned above. It is further stated therein that he has also received the notices from another counsel who has intimated that W.P.No.3057 of 2009 was filed in this Court and that this Court ordered notice thereon. Therefore, he hesitated to take possession of the parking stand. 3. It will also be appropriate to notice that while accepting his quotation, the Senior Divisional Commercial Manager, Secunderabad, has clearly intimated him that the period of three months is to commence from 00.00 hours on 20.02.2009 and would last till 23.59 hours on 19.05.2009. On 20.02.2009, it is now alleged that when he has approached the Station Superintendent for taking possession of the parking place, the Station Superintendent has informed him that he has not received any communication in that regard. He seems to have approached then the Railway Protection Force and they also declined to extend any help. Therefore, he has drawn a representation to the Senior Divisional Commercial Manager, Secunderabad on 20.02.2009 requesting the later to instruct the officials concerned to initiate necessary action in the matter for handing over the parking lot. It appears, the Senior Divisional Commercial Manager, Secunderabad has sent up another communication dated 25.02.2009 suggesting to the petitioner to contact the Commercial Inspector MMTS at Lingampally and Station Superintendent, Lingampally for taking over the vehicle parking stand with effect from 00.00 hours of 28.02.2009. It is not in dispute that this communication has been sent up to the petitioner on 28.02.2009 through speed post at 10.51 hours. Therefore, it may not have reached the petitioner on the very same day before 00.00 hours for him to take over the possession of the stand. While, I could see that the Senior Divisional Commercial Manager, Secunderabad, perhaps is acting quite negligently in the matter in not ensuring that the communications from his office are immediately sent up and failing to ensure that they reach the petitioner in time, but that by itself will not fetch any result in favour of the writ petitioner. The communication dated 25.02.2009 was undoubtedly received by the petitioner. Any person who is anxious to operate the contract would have rushed immediately and sought to take over the possession of the parking stand of Lingampally Station by contacting the Commercial Inspector as well as the Station Superintendent. Instead, the petitioner has preferred to embark upon correspondence. If the petitioner has promptly taken possession of the parking stand, he could have asked for modification of the terms contained in the order dated 11.02.2009 appropriately and suitably. The three months period could have been asked to be reckoned from 06.03.2009 instead of 20.02.2009 or the actual date on which he has taken over the stand pursuant to receipt of communication dated 25.02.2009 or alternatively, he could have asked for waiver of the license fee proportionately. Without doing anything more, to demonstrate his bonafides, he entered into correspondence. Therefore, this is not an appropriate case where this writ petition should exercise the discretion and issue the writ. 4. Further, it is a settled principle of law that, who is at fault for the breach of contract to have occasioned, cannot be determined in a writ petition. A finding regarding the breach of contract can be recorded only after gathering evidence both oral and documentary. For that purpose, proceedings under Article 226 are not the most appropriate of the remedies. 5. Therefore, I have no hesitation to dismiss this writ petition without costs. __________________________________ Justice Nooty Ramamohana Rao October 11, 2011 SP HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.21253 OF 2010 October 11, 2011 sp