Trumboo Trading Co vs UOI and Others

Mansoor Ahmad Mir, J.—Respondents issued tender notice dated 5.3.2010, whereby bids were invited from eligible transport contractors

for transportation of food grains from Food Corporation Godowns at Jammu to Srinagar and Kupwara. Petitioner in response to the said tender

notice submitted the tenders, its bids were accepted and accordingly contract was allotted to the petitioner for transportation of food grains from

Jammu to Srinagar and Kupwara for a period of two years vide Communication No. S&C/l (3)/RTC/Trumboo Trading Co./Jmu-Sgr/Apptt/

2010-11 dated 26.03.2010.

On 6.01.2011 respondent No. 6 invited tenders for allotment of contract for transportation of food grains from Jammu to Lethpora, was

allotted to the petitioner vide communication No. S&C/1(3)/RTC/Trumboo Trading Co./Jmu-Lethpora/Apptt/2010-11 dated 4.02.2011 for a

period of two years. It is Contended that the petitioner was executing the contracts in terms of the conditions contained therein to the satisfaction of

respondents 2 to 6. It is further contended that petitioner earned displeasure of respondent No. 3 because of the fact that the petitioner reported

about planting of four trucks clandestinely in the fleet of trucks provided by the petitioner to respondent-Food Corporation of India at Jammu for

transportation of food grains and sugar from Jammu to Srinagar. Thereafter respondents issued Order No. S&C-6/RTC/T.T.C0. /Jmu-

Fethpora/10-11 dated 16.6.201 1 including final notices bearing No. S&C-(6)/RTC/TTC/Jammu to Lethpora/2010-11 dated 5.8.2011. No.

S&C-(3)/RTC/TTC/Jammu to Srinagar/2010-11 dated 8.8.2011 and No. S&C-(3)/RTC/TTC/Jammu to Kupwara/2010-11 dated 8.8.2011. All

the said notices are impugned in this petition and petitioner has questioned the same on the ground of dehorse of rules, without authority, power,

and violative of mandate of fundamental rights as guaranteed by the Constitution. Accordingly, it is prayed that all the said notices be declared

ultravires illegal and unconstitutional and respondents be restrained from taking any further action on the basis of said notices.

Respondents 2 to 6 have filed reply and resisted the petition on the ground that the parties are governed by the terms and conditions of the

contract and question of violation of Article 14 or any other provision does not arise at all.

Petitioner has not arrayed M/S Ladakh Road Lines as a party to the writ petition. In terms of communication dated 16.6.2011 (annexure ""F""),

both, writ petitioner as well as M/S Ladakh Road Lines have been permitted to carry food grains to FSD Lethpora. Thus, the relief as prayed for

if granted that will affect the rights of M/S Ladakh Road Lines.

On asking, Mr. Jan replied that virtually the writ petitioner and M/S Ladakh Road Lines have already undertaken the supply of food grains to

FSD Lethpora and no further supply of food grains is to be made and that is why petitioner is not seeking relief against M/S Ladakh Road Lines,

and further prayed that respondents be restrained from passing such order on the basis of impugned notices dated 5.8.2011 and 8.8.2011.

It is apt to mention herein that the communication dated 16.6.2011 appears to have been issued in order to comply with the directions passed

by the Supreme Court of India and the said communication is also in favour of writ petitioner. It is apt to reproduce last four paras herein.

Despite as above, there has been no improvement in the working pattern of the RTC which has resulted in consequences that FCI can ill afford.

The issue concerns timely supplies of food grains to the beneficiaries under TPDS/OWS schemes and also distribution of food grains under

additional Adhoc category of BPL beneficiaries under the directions of Hon'ble Supreme Court of India.

Since the RTC i.e. M/S Trumboo Trading Co. is not responding to the demands put forth by FCI for supply of trucks despite final notice issued on

4.6.2011, it has been decided to invoke clause X (c) of MTF and get the transportation work of carriage of food grains to FSD Lethpora done

through other existing RTC i.e. M/S Ladakh Road Lines also at the approved rates of Jammu-Mir Bazar route.

Accordingly you are advised to place indent on daily basis to both M/S Trumboo Trading Co. & M/S Ladakh Road Fines for supply of food

grains to FSD Fethpora.

The differential amount of transportation rate would be recovered from M/S Trumboo Trading Co.

The other three impugned notices are final notices, whereby the petitioner has been asked to improve his performance. It is apt to reproduce last

para of the said notices herein.

Notice dated 5.8.2011

Keeping in view as above, you are hereby given final opportunity to improve your performance within next 72 hours failing which action under the

relevant clauses of the MTF shall be taken. Please treat this as a final notice.

Notice dated 8.8.2011 (Jammu to Srinagar) ""In light of the above, you are requested to improve your performance forthwith failing which action

under the relevant clauses of the MTF shall be taken."" Notice dated 8.8.2011 (Jammu to Kupwara) ""You are requested to put all your efforts for

a better performance by supply trucks as per indent placed by Manager (D) New Godown on day to day basis, failing which action as warranted

in MT1 would be initiated against you.

The question is whether the petitioner can question the notices whereby it has been given opportunity to improve its performance. The answer is

negative for the simple reasons that the writ petition is pre-mature and no action has been taken against the Petition so far. My view is fortified by

the judgments of Apex Court in Special Director v. Mohd. Ghulam Ghouse, AIR 2004 SCW 416 and Union of India (UOI) and Another Vs.

Kunisetty Satyanarayana, . Even otherwise this writ petition is not maintainable for the simple reason that the parties have entered into contract and

are bound by the terms and conditions contained in it. Any dispute between the parties cannot be enforced by the medium of writ petition and the

question of violation of Article 14 in such circumstances does not arise. My this view is fortified by the judgments of Apex Court in Premji Bhai

Parmar and Others Vs. Delhi Development Authority and Others, and Radhakrishna Agarwal and Others Vs. State of Bihar and Others, . It is apt

to reproduce para-10 herein.

It is thus clear that the Erusian Equipment & Chemicals Ltd.'s case (supra) involved discrimination at the very threshold or at the time of entry into

the field of consideration of persons with whom the Government could contract at all. At this stage, no doubt, the State acts purely in its executive

capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise

of its constitutional powers. But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by

the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of

violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this

sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in

and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.

Having glance of the above discussion, this writ petition merits to be dismissed. Accordingly, the same is dismissed. However, petitioner is at

liberty to seek appropriate remedy, if he so chooses.

Interim direction granted vide order dated 19.08.2011 is vacated.