THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos. 7793 & 28135 of 2011 Date of Judgment: 2.12.2011 Between: M/s. NITCO Roadways Pvt. Ltd. …Petitioner and Union of India and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos. 7793 & 28135 of 2011 COMMON ORDER: The petitioner in both the writ petitions is one and the same. WP No. 7793 of 2011 is preferred against the tender notice dated 3.3.2011 issued by the respondents for leasing out parcel vans for transportation of parcels by Train No. 18646/18645, East Coast Express between Hyderabad – Shalimar – Hyderabad for one day in a week on round trip basis for a period of three years and also against the rejection of his request for renewal of his lease. The petitioner who was the existing holder of the lease under agreement dated 4.4.2008 contended that under the initial agreement which was for a period of three years, there was a right to seek renewal as per clause 20.1. The said clause 20.1 reads as follows, “Extension of lease is permissible only in case of long term lease of 3 years wherein the same can be extended only once, by 2 more years at a lease rate of 25% more than the lump sum leased freight rate subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract.” The petitioner contended that he has applied for renewal under his letter dated 8.10.2010, but his request was rejected by the respondents on the ground that his performance being not satisfactory as stated in the letter of rejection dated 9.12.2010. The petitioner thereafter sought re-consideration of his application for extension by ﬁling another application dated 21.1.2011 which was again considered and the earlier rejection dated 9.12.2010 was conﬁrmed and thereby the respondents had taken a conscious decision to ﬂoat a fresh open tender where the petitioner was also permitted to participate. Questioning the said rejection and not granting extension to the petitioner, this writ petition was filed. On 29.3.2011 while hearing the matter at the initial stage, this Court directed the respondents not to ﬁnalize the tender to the extent of the particular item of work. Thereafter on 1.4.2011 while admitting the writ petition, this Court directed to continue the petitioner’s contract on the same terms till ﬁnalization of tenders. Accordingly the petitioner continued the work on the same terms pending the writ petition which underwent several adjournments on some ground or the other. It appears that the petitioner participated in the later tender and was found to be lowest and rated as H4. Consequently as per the recommendations of the tender committee dated 3.10.2011 and their further report after negotiations dated 13.10.2011, the tender was ﬁnalized and awarded to one S. Balaji. Questioning the said award of contract to the said successful tenderer, the petitioner ﬁled another WP No. 28135 of 2011 inter alia contending that during the pendency of the earlier WP No. 7793 of 2011 the respondents ought not have proceeded with the ﬁnalisation of the tender. The said successful tenderer was impleaded as 4th respondent in the second writ petition referred to above. When the second writ petition was heard by this Court, it was brought to the notice of this Court on 17.10.2011 that the petitioner himself has participated in the said tender and was listed as lowest being rated as H4 and in view of that, the respondents were directed to ﬁle counter and both the writ petitions were directed to be listed for hearing. Accordingly both the writ petitions were heard together and being disposed of by this common order. Clause 20.1 of the agreement, which is extracted above, on the face of it, shows that the extension of contract is not automatic, but is subject to satisfactory performance of the lease holder without any penalty for overloading or violation of any provisions of the contract. While the petitioner’s request for renewal was considered and rejected by the respondents on 9.12.2010, they have categorically recorded the reason of the petitioner having suﬀered a penalty of Rs.500/- and have declined to grant the renewal on the ground that the petitioner’s performance was not to the satisfaction of the respondents. On the petitioner’s request, the respondents have once again re-considered their decision and conﬁrmed the said decision under their further letter of 7.3.2011. It is, therefore, not open for the petitioner to contend that the rejection of his request is unjustiﬁed, inasmuch as on the face of it also the said rejection is in terms of the clause 20.1 of the agreement referred to above. It is not as if that the respondents have rejected the petitioner’s request without any reasons, nor can it be said that this Court would record its opinion over and above the satisfaction or otherwise expressed by the respondents in the impugned proceedings. This Court, therefore, cannot substitute the satisfaction or otherwise of the respondents and the said proceedings of the respondents rejecting the petitioner’s request for renewal cannot be set aside, as the rejection order was passed by a reasoned order which satisﬁes the requirements of the clause 20.1 of the agreement referred to above. Even otherwise also, the subsequent conduct of the petitioner establishes that he is not entitled to any relief in WP No. 7793 of 2011 in view of his participation in the tender process and competing for allotment of tender to himself. The tender dated 12.5.2011 was admittedly called for much after the rejection of the petitioner’s request for extension and secondly the proceedings including negotiations with regard to the said tender were completed by tender committee as early as on 13.10.2011, when their report was given to the competent authority. The petitioner did not, however, move in the matter earlier to the said report of the tender committee, but has participated in the tender and awaited for favourable consideration. It is also necessary to notice that his participation in the tender and finalization thereafter conclusively establishes that the petitioner’s claim for renewal of the lease cannot be sustained. The learned counsel for the petitioner relied upon a decision of the Delhi High Court in W.P. (C) 7289 of 2010 and batch dated 2.6.2011 which dealt with similar writ petitions seeking extension in the northern railways. The said decision is relied upon to show that in all those writ petitions directions were given to northern railways to extend the lease for a further period of two years, but as pointed out by the learned standing counsel appearing for the respondents that those batch of writ petitions were allowed after speciﬁcally noticing that pick and choose policy was adopted by the northern railways in permitting extension in some cases and rejecting others. In the present case the petitioner has not been able to show any single instance of extension having been granted to the existing lessee by the southern railways. Even otherwise, the learned standing counsel appearing for the respondents relies upon a decision of learned single Judge of Madras High Court in WP No. 10407 of 2010 and another, dated 12.11.2010 whereunder the rejection of extension of lease by the southern railways was upheld by the learned single Judge and WA No. 2470 of 2010 and another preferred against the said order of learned single Judge were also dismissed by the Division Bench of Madras High Court on 6.12.2010. As mentioned above, the right of renewal conferred by clause 20.1 being not automatic and subject to satisfaction and the satisfaction having been recorded against the petitioner, the petitioner is not entitled to any relief in WP No. 7793 of 2011 and in view of the fact that the petitioner was found lowest tenderer, he cannot seek to impugn the ﬁnalisation of the tender dated 12.5.2011 which is subject matter of W.P.No. 28135 of 2011. Consequently both the writ petitions are liable to be dismissed. Accordingly both the writ petitions are dismissed. However, there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 2.12.2011 KR