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Judgment
M.Y. Eqbal, C.J. and T.S. Sivagnanam, J.—These two appeals have been filed by the Appellant against the judgment and order dated
12.11.2010 in W.P. Nos. 10407 & 10410 of 2010 whereby the learned single Judge dismissed the writ petitions. As a matter of fact, the present
Appellant, apart from filing the above mentioned writ petitions, filed two more writ petitions being W.P. Nos. 10408 & 10409 of 2010, which also
came to be dismissed by the learned single Judge by the impugned common judgment.
In W.P. No. 10407 of 2010, the Appellant-writ Petitioner made the following prayer:
Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records
pertaining to the letter of the 1st Respondent in No. C.206/86/40/38/VPH/T.34/6317/6318 dated 29.03.2010 and the incidental Tender Notice
No. 1/2010-2011 dated 08.04.2010 of leasing of parcel space in parcel vans so far as tender notice pertaining to one parcel of Train No.
6317/6318 of the 1st Respondent and quash the same and consequently direct the Respondents to extend the period of lease agreement for Train
No. 6317/6318 for a further period of two years as stipulated under Clause 18.1 of the Agreement dated 28.03.2007 by considering the
representation of the Petitioner dated 05.05.2010.
In W.P. No. 10410 of 2010, the prayer made by the Appellant-writ Petitioner is as under:
Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records
pertaining to the letter of the 1st Respondent in No. C.206/86/40/38/VPH/T.34/6687/6688 dated 29.03.2010 and the incidental Tender Notice
No. 1/2010-2011 dated 08.04.2010 of leasing of parcel space in parcel vans so far as tender notice pertaining to one parcel of Train No.
6687/6688 of the 1st Respondent and quash the same and consequently direct the Respondents to extend the period of lease agreement for Train
No. 6687/6688 for a further period of two years as stipulated under Clause 18.1 of the Agreement dated 28.03.2007 by considering the
representation of the Petitioner dated 05.05.2010.
It appears that the Respondents-Southern Railway entered into an agreement with the Appellant for leasing of parcel space in parcel vans in
Train Nos. 6317/6318 & 6687/6688 for transportation of parcels from Erode to Ludhiana and back. The agreements so entered were for a
period of three years. After the expiry of the period of contract, the Respondents issued a letter dated 29th March, 2010, extending the period of
agreements for three more months or till the finalization of the tender, whichever is earlier. Thereafter, a tender notice was issued by the
Respondents on 8th April, 2010 inviting tenders for leasing out parcel space in parcel vans in various trains including the trains that are involved in
the writ petitions. The Appellant questioned the tender notice and made a claim that the period of agreement is liable to be extended for a further
period of two years, as stipulated under Clause 18.1 of the agreement. Simultaneously, the Appellant filed other writ petitions challenging the
process of the tender and also on different grounds.
The writ petitions were opposed by the Respondents on the ground inter alia that the Petitioner-Appellant has an alternative and efficacious
remedy under Clause 24.3 of the agreement, and hence the writ petitions are not maintainable. The further stands of the Respondents is that the
Southern Railway took a police decision not to extend the lease for a further period of two years, as it would cause huge loss to the exchequer.
The learned single Judge although held that the writ petitions are maintainable, but, on merits, found that the Appellant violated the various
provisions of the agreement and allowed overloading for which penalty was imposed and the same was deposited. The learned single Judge further
held that the Appellant cannot, as a matter of right, claim extension of lease for a further period of two years.
We have heard the learned senior counsel appearing for the Appellant, and the perused the impugned judgment, and the materials produced in
the typed set.
Learned senior counsel appearing for the Appellant mainly contended that although the agreements were for a fixed period of three years, the
same was liable to be extended for two more years. Learned senior counsel has drawn our attention to Clause 18.1 of the Agreement and
submitted that since there was no violation of the contract, the action of the Respondents in floating fresh tender was not justified. Learned senior
counsel further submitted that although the extension clause was deleted on 9th February 2010, it was clarified that the said deletion will not in any
way affect the existing contract.
There is no dispute that the Respondents entered into agreements with the Appellant for leasing of parcel space in parcel vans having capacity of
25 tons by train Nos. 6317/6318 and 6687/6688 for transportation of parcels from Erode to Ludhiana and back. Clause 18.1 of the Agreement
provides for extension clause, which reads as under:
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.
It is also useful to refer to Clause 24.3 of the Agreement, which reads as under:
In the event of any difference of opinion or dispute between the Railway Administration and the Leaseholder as to the respective rights and
obligations of the parties hereunder of as to the true intent and meaning of these presents or any articles of conditions thereof. Such difference of
opinion shall be referred to the sole arbitrator, who shall be a Gazetted Railway Officer appointed by the General Manager, Southern Railway,
Chennai for the time being whose decision shall be final, conclusive and binding on the parties, the intention of the parties being that every matter in
respect of this agreement must be decided by him a sole arbitrator and not taken to a Civil Court. All disputes are subject to the territorial
jurisdiction of courts located in Chennai only.
From the aforesaid two clauses, it is evidently clear that the agreements were for a period of three years, which can be extended for a further
period of two years, subject to satisfactory performance by the Appellant. The learned single Judge found that the Appellant violated the terms and
conditions of the contract, for which penalty was imposed and the same were deposited by the Appellant.
In the facts and circumstances of the case, we are of the definite view that a writ of mandamus cannot be issued directing the Respondents to
extend the lease for a further period of two years. Admittedly, the contract in question is not a statutory contract, rather a commercial contract
having an arbitration clause also. Hence, the relief sought for by the Appellant is not only hit by the provisions of the Specific Relief Act, 1963, but
also the writ jurisdiction cannot be invoked having regard to the arbitration clause contained in the agreement.
For the reasons aforesaid, we do not find any merit in these appeals, and accordingly, they are dismissed. No costs. Consequently,
miscellaneous petitions are closed.