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Judgment
Debasish Kar Gupta, J.
The first writ application bearing WP No. 11431 (W) of 2013 is filed by the petitioners for issuing a writ in the nature of mandamus directing the respondent authorities to allow the petitioners to commence operation in respect of lease of FSLR No. 1 (4 tonnes) Train No. 15959 Up Kamrup Express on the basis of the communication issued by the Assistant Commercial Manager/I for and on behalf of the respondent No. 2 under memo. No. COM/CF/Leasing/SLR/5959/17.3.2009 dated March, 2009, in connection with tender notice dated February 16, 2009 (hereinafter referred to as the said tender notice, 2009).
The second writ application is filed by the petitioners to set aside the tender notice No. COM/CF/Leasing/CLP/OT/14/02 fixing date of opening on January 27, 2015 (hereinafter referred to as the impugned notice) is issued by the respondent authority so far as the leasing of FSLR I (4 tonnes), amongst others, in train No. 15959 Up Kamrup Express.
Considering the aforesaid issues involved in the aforesaid writ applications, the same are taken up for analogous hearing. The backdrop of the aforesaid cases are as follows:-
The said tender notice, 2009 was issued by the respondent authority for leasing of FSLR (containing space of 4 tonnes) in the above train.
On March 16, 2009, the petitioners submitted tender documents in response to the said tender notice, 2009 quoting a rate of Rs. 23,293/- per single trip for operation in 7 days a week on March 17, 2009. The tender documents submitted by the participants were opened. The rate offered by the petitioners happened to be highest rate. After negotiation and exchanging series of communications, the respondent authority made an offer to the petitioners by a communication dated November 14, 2014 allowing the petitioners for operation in respect of one compartment of the FSLR under reference till November 16, 2012. The petitioners gave reply to the above offer by a communication dated November 15, 2012.
Since no agreement was executed in respect of leasing 4 tonnes space in FSLR of the above Train on the basis of the above communication dated November 14, 2012, the petitioners filed the first writ application. By an order dated September 10, 2013, parties were directed to exchange affidavits but no interim order was passed.
During the pendency of the first writ application the impugned tender notice was issued for leasing of Front SLR Nos. 1 and 2 (containing 4 tonnes space in each portion) and Rare SLR (containing space of 4 tonnes) of the above train, amongst others. The second writ application is filed by the petitioners for setting aside the impugned tender notice only in respect of Front SLR No. 1 (containing space of 4 tonnes).
In the meantime, the respondent authority floated a tender notice No. Com/CF/Leasing/CLP/OT/11/01 for leasing of 4 tonnes space of Front SLR/Rare SLR of the said train (sl. No. 5), amongst others. A partnership farm run under the name and style Shiv Shakti Parcel Service participated in the above tender process amongst other participants offering a rate of Rs. 28,998/- per trip for leasing the above parcel space for 7 days a week. The tender documents in connection with the above tender notice were opened on June 2, 2011. The rate per trip offered by the aforesaid Shiv Shakti Parcel Service was the highest rate.
The respondent authority floated a tender bearing tender notice No. COM/CF/Leasing/CLP/OT/11/01 dated May 10, 2011. The aforesaid Shiv Shakti Parcel Service filed an application under Article 226 of the Constitution of India in the matter of Shiv Shakti Parcel Service and Ors. Vs. Union of India and Ors. bearing W.P. No. 3259 (W) of 2014, assailing the action on the part of the respondents in discharging the tender notice dated May 10, 2011 by the above communication dated November 21, 2013. The above writ application was dismissed on February 11, 2014 and above order is quoted below:-
"11.02.2014
Item No. 57
SB
W.P. 3259 (W) of 2014
Shiv Shakti Parcel Service and Ors. Vs. The Union of India and Ors.
Mr. M. Gupta.........................For the petitioners.
Mr. C. Ghosh.........................For the respondents.
Having heard learned advocates for the parties, I am of the view that no legally protected right of the petitioner which could be judicially enforced has been infringed by reasons of cancellation of the tender process, despite it being the H-I bidder, is not reasonable at the moment. The decision making process of the respondents does not suffer from the vices of illegality, irrationality and/or procedural impropriety warranting interference.
The writ petition stands dismissed, without costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.
(DIPANKAR DATTA, J.)"
An appeal was preferred by the Shiv Shakti Parcel Service bearing MAT No. 443 of 2014 filing an application bearing CAN No. 2873 of 2014 therewith. The above appeal was disposed of on January 27, 2015. The operative part of the above judgment delivered in appeal bearing MAT No. 443 of 2014 is quoted below:-
".... It is well-settled that if the reserve price fixed would be of disadvantageous to the authority which deals with the public money, it is always open to the authority to re-fix the reserve price cancelling the earlier tender even if there were to be highest tenderers in terms of the tender process. Therefore, whether the litigation was pending and when it came to be terminated so far as this right of the authority is concerned, the appellants cannot claim any equity as they were very much aware of the pendency of the litigation and they accepted the terms of tender process and waited without challenging the said terms and conditions of tender process.
Then coming to the next question, it is the policy of the respondent authorities not to issue or award leasing contract in terms of circular dated July 27, 2012. It is not a particular tenderer or individual or a company against whom such circular is passed. Irrespective of who the tenderer was, if award of leasing contract has not been issued to all such tenders, that have to be cancelled by Zonal Railways by returning earnest money to the tenderers and fresh tenders have to be called as per revised reserve price. This policy decision must have been taken after deliberations by the concerned authority of the Railways. When uniform decision was taken to cancel all such tenders, award of leasing contract was not at issue. We fail to understand how the appellants/writ petitioners could challenge the cancellation on account of this reasoning at exhibit P-8. Even otherwise FM Circular No. 16 of 2012 is not the subject of challenge in the writ petition.
In the light of above reasoning, we are of the opinion the three years'' time in favour of tenderer to have the award of tender becomes insignificant as decision like FM Circular No. 16 of 2012 can put an end to such terms if it is a policy decision and if the policy decision in question is not arbitrary, further not with reference to any individual nor against any public policy. We fail to understand what right the appellant can agitate so far as tender which is already discharged.
In the light of above discussion, the appeal deserves to be dismissed and accordingly dismissed.
However, this dismissal of the appeal and the writ petition would not come in the way of appellants'' participating in the fresh tender process for the very same train 15959 Kamrup Express.
Since the tender process pertaining to train No. 15959 Kamrup Express is postponed till January 31, 2015 for finalisation of tender process as submitted across the bar, we direct the respondent authorities to issue tender form to the appellants so that he could also participate in the process provided the appellants complete the process of filling up of forms and other formalities on or before January 29, 2015.
Consequently, earnest money already deposited is to be refunded to the appellants and so far as fresh tender process, the appellants have to comply with the required formalities.
(Manjula Chellur, Chief Justice)
(Joymalya Bagchi, J.)"
It is submitted by Mr. Pantu Deb Roy, learned advocate, appearing for the writ petitioner in both the writ applications, that FSLR of train No. 15959 Up Kamrup Express contained two separate compartments having spaces of 4 tonnes in each compartments. According to him, the petitioners are concerned with one of the separate compartment of FSLR under reference having no nexus with the claim of the Shiv Shakti Parcel Service in respect of the other separate compartment of the FSLR under reference having a space of 4 tonnes.
According to Mr. Deb Roy, the eligible candidates were asked to submit tender documents in respect of the (sl. No. 36) the impugned tender notice in respect of FSLR I, II as also RSLR. In view of the order dated January 27, 2015 passed in MAT 443 of 2014, the respondent authority was permitted to initiate fresh tender process in connection with the claim of M/s. Shiv Shakti Parcel Services and Ors. The claim of the above firm was relating to only one compartment of FSLR under reference containing 4 tonnes space out of two separate compartments each containing 4 tonnes space.
It is submitted by Mr. Sanjit Kr. Ghosh, learned advocate appearing for the respondent Nos. 2 and 3, that the tender process initiated in the year 2009 was also under consideration in MAT No. 443 of 2014. In view of the order of dismissal dated January 27, 2015 of the above appeal, there is no scope of re-opening issue relating to propriety of decision making process of respondent authority in connection with the tender notice issued in the year 2009. According to him, the propriety of tender notice issued in the year 2015 which is the subject-matter of challenge in one of these writ applications bearing W.P. No. 2682 (W) of 2015 cannot be re-opened in connection with these writ applications.
I have heard the learned advocates appearing for the respective parties at length and I have given my thoughtful considerations to the facts and circumstances of this case taking into consideration the materials on record including the papers and documents produced by the respondent authority before this Court (true copies are kept on record). It is not in dispute that FSLR of train No. 15959 Kamrup Express contained two separate compartments containing space of 4 tonnes each. It is also not in dispute that the petitioners participated in the tender process initiated in the year 2009 in respect of one of the aforesaid compartments.
Before entering into the merits of these cases the scope of examining the propriety of the decision making process of the actions of respondent authority in these writ applications is required to be examined.
By virtue of the impugned tender notice (the date of opening of the tender papers was fixed on January 27, 2015) sealed tenders were invited from eligible registered lease holders in for leasing of 110 compartments of 4 tonnes spaces of FSLR, 48 compartments of 4 tonnes space of RSLR and 36 compartments of 1 tonne space of AGC of FSLRs of passenger carrying trains originating from Howrah Station. From the list of trains mentioned in the above tender notice, it is evident that Sl. No. 36 was concerned with two separate compartments of FSLR (each containing space of 4 tonnes) as also one RSLR of train No. 15959 Kamrup Express. Therefore, the eligible registered lease holders, who were interested to participate in respect of of serial No. 36 of the impugned tender notice, were not entitled to participate in the above tender process only in respect of one compartment of FSLR of the train under reference containing space of 4 tonnes separately without offering their respective bids in respect of the other compartment of the FSLR and RSLR.
Taking into consideration the judgment dated January 27, 2015 delivered in MAT No. 443 of 2014 by Hon''ble Division Bench of this Court, I find that the above action of the respondent authority was not interfered with. Observation was also made in the above judgment that the dismissal of the above appeal and the writ petition out of which the above appeal arose would not come in the way of participation of Shiv Shakti Parcel Services and Ors. in the fresh tender process.
The attention of the Hon''ble Division Bench was not drawn by any of the parties of the above appeal towards the existence of two separate compartments in FSLR of the train under reference having space of 4 tonnes in each compartment. The attention of the Hon''ble Division Bench was not drawn towards the respective claim of the petitioners and the above Shiv Shakti Parcel Services and Ors. Each of them was concerned with 4 tonnes of space in FSLR under reference. It appears that the entire space of the FSLR in the train under reference is covered by the above judgment. In view of the above judgment, it is not open for this Court to adjudicate the claim of the petitioners in respect of only one compartment of the FSLR under reference having a space of 4 tonnes separately and affecting partially the participation of the eligible registered tenderers in the bid in respect of Sl. No. 36 of the list under reference of the impugned tender notice.
Therefore, these writ applications are dismissed. However, this order will not stand in the way of taking steps in the matter by the petitioners as permissible under law.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.