MC 2181/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY This interim application by the Food Corporation of India (hereinafter for short referred to as the Corporation) seeks modification/alteration/vacation/cancella tion of the order dated 30.06.2010 passed in WP(C) No.3682/2010 and WP(C) No.349 8/2010. By the said order an interim restraint is clamped on the operation of t he Memo No. S & C/1319/Assam/10 dated 26.06.2010 of the Deputy General Manager ( Region), F.C.I., Ulubari, Guwahati pertaining to the writ petitioners. I have heard Mr. P.K. Roy, learned Standing Counsel for the applicant-Corporatio n, Mr. N. Dutta, Senior Advocate for the writ petitioners and the learned Standi ng Counsel, Transport Department, Govt. of Assam. The facts in bare essentials would lay the necessary preface. The writ petition ers (Opposite party herein) in response to the notice inviting tender (hereinaft er for short referred to as the NIT) dated 14.12.2009 issued by the applicant-Co rporation for appointment of transport contractors to carry its foodgrains for t he routes referred to therein submitted their bids offering amongst others their rates. According to the writ petitioners, they quoted their rates under the bo na fide belief that the foodgrains involved would be permitted to be carried to the extent of 22 MT (Metric Ton) per truck or more. All the writ petitioners ha d quoted the same rates, which in course of the negotiations with the Corporatio n during the process of settlement were reduced to Rs.1516/- PMT for Guwahati-Ra mnagar and Rs.1470/- PMT for Guwahati-Bdarpurghat. At the final stages of the s ettlement it transpired, in view of the intervening developments, that restricti ons were enforced at various checkpoints in the State of Assam to limit the carr ying load to 9 MT per truck. The trucks carrying the foodgrains for the Corpora tion were also not exempted from such constraints and it (Corporation) was aware of this restriction. In the changed scenario, according to the writ petitioners, the rate of Rs.1516/ - PMT and Rs.1470/- pmt were grossly unworkable compared to the prevailing marke t rate of Rs.2900/- PMT. As a matter of fact, the rates of Rs.1516/- PMT and Rs. 1470/- PMT the writ petitioners have asserted were below 10% of the market rate. As inspite of all these, the Corporation was determined to finalise the settle ment at the negotiated amount of Rs.1516/- PMT and Rs.1470/- PMT the writ petiti oners approached this Court with WP(C) No.3498/2010 contending inter alia, that its approach was visibly arbitrary, whimsical and unfair, besides being in delib erate repudiation of its obligation to ensure a workable rate for execution of t he works as mandated by Clause 26.6 of its Stage and Contract Manual. The tende r notice dated 14.12.2009 and all consequential steps of the Corporation were th us sought to be annulled by the impugnment. In course of the hearing of the above writ petition, a copy of the fax order dat ed 17.06.2010 issued by the concerned authority of the Corporation accepting the writ petitioners’ negotiated rates as above was conveyed and they were required to furnish the prescribed security money on or before 25.06.2010. Situated thu s, they instituted WP(C) No.3498/2010 extending their challenge to such orders d ated 17.06.2010. As during the pendency of these petitions, letters dated 26.06. 2010 of the Deputy General Manager(Region), FCI, Ulubari, Guwahati to the writ p etitioners followed reiterating the requirement of deposit of the security money on or before 30.06.2010 indicating that on the failure to do so their contract would be cancelled and alternative arrangement would be made at their risk and cost in terms of the Model Tender Form Clause - XI(a), they filed an interim ap plication registered as Misc. Case No.2096/2010 seeking suspension of these comm unications. The interim order sought to be modified and/or vacated was passed t hereafter upon hearing the learned counsel for the parties. The applicant-Corporation, in essence, has pleaded that at all relevant times du ring the subsistence of the process of settlement, the writ petitioners were awa re of the restriction of the carrying load of 9 MT and had not only quoted their rates accordingly but also had agreed to the negotiated rates of Rs.1470/- and Rs.1506/- PMT for the aforesaid two routes. The Corporation has asserted that t he negotiated rates are not below 10% of the market rates and therefore the alle gation of its inaction, vis-à-vis Clause - 26.6 of Stage Contract Manual is misc onceived. It has instead claimed that the negotiated rate is 96% above the sche dule of rates for Guwahati-Ramnagar and 97% above the schedule of rate for Guwah ati-Badarpurghat. It has thus contended that the sudden turn around by the writ petitioners lacks in bona fide and is directed towards wrongful gain at the cos t of public interest. The Corporation has asserted that as on date, there is no transport contractor for the aforesaid two routes, the term of the existing con tract having expired and with the non-cooperative attitude of the writ petitione rs, the transportation of foodgrains has come to a halt exposing the entire Nort h-Eastern Region to an imminent spectre of food crisis. It seeks to contend that in view of the interim order dated 30.06.2010 it is unable to float a fresh not ice inviting tender to appoint transport contractors at the risk and cost of the writ petitioner though they have unjustifiably failed to respond to it’s commun ications dated 17.06.2010 and 26.06.2010. The writ petitioners, in their reply have not only reiterated their stand that t he rates quoted by them had been with the carrying load of 22 MT or above per tr uck in mind, they have also referred to the current market rates brought on reco rd by the proforma Respondent No.3 in WP(C) No.3682/2010 as below- (a) Guwahati-Ramnagar - Rs.2975/- PMT. (b)Guwahati-Badarpurghat- Rs.2955/- PMT. They have also annexed to their additional affidavit inter-official communicatio ns, as well as minutes of the proceedings of the meeting dated 22.06.2010 of the representatives of the State Government, the Corporation and the transporters r equiring inter alia fresh negotiations on the proposed enhancement in transport ation rates to ensure smooth supply of the essential foodstuff to the consumer s without disruption. Mr. Roy, learned counsel for the applicant-Corporation while reiterating its ple aded assertions has emphasized on the lurking food crisis and overwhelming publi c interest as the impelling necessity to vacate and/or modify the interim order. The learned Standing counsel has urged that in the facts and circumstances of t he case having regard to the irresponsible and recalcitrant stance of the writ p etitioners, the Corporation is within its right to invoke Clause XI (a) of the M odel Tender Form (MTF) and therefore it ought to be allowed to initiate a fresh process for appointment of transport contractors for the routes involved in plac e of the writ petitioners at this risk and costs. Mr. Dutta as against has insistently contended that in view of the overwhelming attending facts unequivocally demonstrating a sharp surge in the market rate fol lowing the restriction on the permissible carrying load per truck, the persisten ce of the Corporation to compel the writ petitioners to adhere to the negotiated rates is per se arbitrary. Besides contending that the interim order visibly d oes not debar the Corporation from initiating a fresh process without invoking t he risk and cost Clause against writ petitioners, the learned Senior counsel has argued that the instant application is only a measure to coerce them to submiss ion notwithstanding the pendency of the writ proceedings before this Court. Refe rring to the rates quoted by the proforma Respondent No.3 as well as the officia l communications and the minutes of the proceedings of the meeting as above, the learned Senior counsel has argued that not only the Corporation is aware that t he negotiated rates are unworkable in the existing factual premise, it’s approac h vis-à-vis the writ petitioners is pre-determined and coercive. The pleadings as noticed hereinabove generate contentious issues based not only on the competing facts but also on the purport and application of Clause 26.6 of the storage and Contract Manual of the Corporation as well as Clause XI (a) of the MTF. The interim order per se does not prohibit the Corporation from initia ting a fresh process without invoking the risk and cost clause against the writ petitioners. On the basis of the materials presently available on record, it is prima facie not possible to conclusively record at this stage that the negotiat ed rates of Rs.1470/- and Rs.1516/- are the current market rates for transportat ion of foodgrains qua the process initiated by the NIT dated 14.12.2009. The riv al contentions on merits call for closer scrutiny to enable a complete and final adjudication. In the above premise to permit the Corporation to initiate a new exercise by invoking Clause XI(a) of the MFT would amount to prejudging the iss ues against the writ petitioners. Though, Mr. Roy had contended that this Claus e even if invoked may not entail immediate detrimental consequences to the writ petitioners and can be made subject to the final outcome in the writ petition, i n the opinion of this Court such a course if permitted would lead to unavoidable complications and multiplicity of litigation. On the other hand, if in public interest the Corporation initiates a public process without resorting to the ris k and cost clause and in the process suffer any financial loss, the same can ver y well be recovered from the writ petitioners in the event their challenge befor e this Court fails. The Corporation as a statutory body being obliged to cater to the public interest, it is open to it to take necessary steps in that regard, more particularly as the interim order does not in any way impede such an endea vour. Consequently, the interim order dated 30.06.2010 would continue until fur ther order(s). For the reasons recorded hereinabove, the prayer for vacation/ modification, ca ncellation and/or alteration of the impugned order lacks in persuasion and subst ance and is thus declined. The miscellaneous case is rejected.