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Judgment
G. Rajasuria, J.—This Writ petition is focussed to get issued a Writ of Mandamus directing the first respondent to allot an extent of 1352
sq.mts, space abutting the existing cycle stand at Tirunelveli Junction Railway Station, Tirunelvei, by implementing the proceedings of the first
respondent dated 02.08.2005 passed in Ref. No. U/C 300/CS/TEN/05. The subsequent prayer in the Supplementary affidavit is for issuing
suitable directions to the respondents to cancel the allotment and refund the amount remitted by the petitioner with interest.
The facts giving rise to the filing of this petition as stood exposited from the whole kit and caboodle of facts available in the records would run
thus:
Admittedly and indubitably, the petitioner happened to be the licensee under the Southern Railways for running a two wheeler stand which included
cycle stand also. According to the petitioner, it so happened that she was declared as the successful bidder in the auction. However, the area of
1352 Sq.mts concerned was not demarcated for the stand, and handed over to the petitioner by the Southern Railways. In such an eventuality, she
started running the two wheeler stand in the place where already the stand was existing in an area of 257 Sq.mts just opposite to Tirunelveli
Railway Junction. Thereupon, there were exchange of communications between the petitioner and the Southern Railway officials relating to
demarcation of the area to run the two wheeler stand covering an extent of 1352 Sq.mts as per the contract. The petitioner was actually running
the two wheeler stand at the aforesaid smaller area of 257 Sq.mts from 20.08.2005 till 04.11.2005. The petitioner could not run the two wheeler
stand as per contract for want of co-operation from the officials in demarcating the area in which she should run the two wheeler stand. She also
made a publication as per her public notice dated 04.11.2005 that she could not run the two wheeler stand and virtually she called upon her
customers to get back their money which they paid on monthly basis. As such, the petitioner would find fault with the Railway authority for having
not helped her to run the two wheeler stand.
The petitioner also filed the supplementary affidavit with the averments as under:
The petitioner deposited a sum of Rs. 7 lakhs as advance and every year, she undertook to pay a sum of Rs. 7 lakhs as lease amount. The
respondents have not demarcated the area of 1352 Sq.mts and she was constrained to occupy 257 Sq.Mts which was earlier used as cycle stand
by the previous licensee. Because of the non co-operative attitude of the Railway authority, she was constrained to close it. The Railway
Protection Force on 30.10.2005 drove her employees from the place concerned and closed the two wheeler stand. Such high-handed activities
were resorted during the pendency of the writ petition. Because of their non performance of their contract, she was constrained to close the
business and made to incur heavy loss. In fact, during the pendency of the writ petition, the Railway officials got signatures from the petitioner in
some papers. Accordingly, in the supplementary affidavit, she prayed for cancellation of the allotment and refund of the amount deposited by her
with interest.
Per contra, denying and refuting the allegations/averments in the petition, the Southern Railway filed the counter with the averments as under:
The period of licence is for three years with effect from 20.08.2005 to 19.08.2008. The licensee did not take up her business in running the two
wheeler stand in the area earmarked by the Railway administration, but started operating in the area which had been allotted to previous
contractor, at her own whims and fancies. In fact, the petitioner occupied the area to the extent of 2095.47 Sq.mts as against the authorised area
of 1352 Sq.Mts. It is false to contend that only 257 Sq.Mts was occupied by her. On 03.11.2005, the relevant land was allotted as per her own
choice to run two wheeler stand, but she had not chosen to continue the business. There was no fault on the part of the Railway authorities in
demarcating the area. The petitioner has also not paid the licence fee.
In the additional counter affidavit filed by the Railway Official, he would proceed to contend that there is an arbitration clause in the agreement
and without resorting to that, she was not justified in filing this writ petition. She of her own accord issued publication dated 04.11.2005 that she
was going to stop running the two wheeler stand in the Railway premises and thereby, it was she who committed breach of contract.
Heard both sides in entirety.
The point for consideration is as to whether the petitioner is entitled to get refund of the amounts paid by her both towards advance as well as
towards licence fee?
The learned Counsel for both sides reiterated their stand as found set out in the respective pleadings of the parties.
The perusal of the records at once make me to understand that there was lack of consensus ad idem between them. The petitioner on the one
hand, would state that since the Railway authority failed to demarcate and hand over an area of 1352 Sq.Mts as the place for running two wheeler
stand, she was constrained to occupy an area of 257 Sq.Mts which was used by the erstwhile contractor as cycle stand.
The Railway administration would state that at the time of calling for the tender, the area was not located. As such, without both parties having
in their mind which area was going to be actually allotted for the two wheeler stand, a contract was concluded.
The entire trouble arose because of such non-demarcation. Hence, I am having no hesitation in arriving at the conclusion that the contract itself
got vitiated, because of absence of consensus ad idem.
It is a trite proposition of law that for the purpose of running a two wheeler stand, the area is more important. Even without getting permission
from the Railway administration, she occupied the area which was already used by the erstwhile contractor as a cycle stand. The learned Counsel
for the Railway administration would submit that even though the Railway authority wanted to allot some other place other than the place used by
the erstwhile contractor for running the cycle stand, yet in view of the petitioner having occupied the area where the erstwhile contractor had run
the stand, they allowed her to continue by demarcating 1352 Sq.Mts near to it. Whereas the learned Counsel for the petitioner would submit that
since there was non co-operation on the part of the Railway officials in demarcating the extent of 1352 Sq.Mts, she being the looser started
running the two wheeler stand in the place where the erstwhile contractor had run the stand in an extent of 257 Sq.Mts and that since it was not
lucrative for her to run the two wheeler stand, she moved away from the contract.
There are allegations and counter allegations. But, one fact is clear that both have to blame for their breach of contract even though one is
accusing the other for such breach. Before calling for tender, there should have been some indication regarding the actual plea and are where the
two wheeler stand should exist. It is the admitted case of the Railway administration that the Railway wanted to expand the junction area and use
the are occupied by the erstwhile contractor, for some other purposes and demarcate 1352 Sq.Mts in a different nearby place. They ought to have
done it well before calling for tender or there should have been an indication in the tender itself. Admittedly, there is no such specification or
indication. Hence, in such a case, neither of them could be heard to contend that only one of parties to the contract was at fault. Both are at fault
and in this factual matrix, the Court could only to the extent possible form put them in their respective former position. One cannot in totality set the
clock back. Considering the facts and circumstances, the former position to the extent possible should be restored. In my considered opinion, one
cannot claim any damages as against the other.
The sum of Rs. 7 lakhs which was deposited as security, should be refunded to the petitioner. Out of the another sum of Rs. 7 lakhs paid
towards licence fee for one year, approximately for the 1/4 (quarter) year of enjoyment by the petitioner, proportionately there should be
deduction and the remaining amount has also to be refunded to the petitioner.
The learned Counsel for the respondents placing reliance on Clause 13 of the agreement dated 03.11.2005, would pray that the Railway
Administration may be permitted to recover more amount of licence from the licence fee deposited by the petitioner in view of the hardship caused
to the Railway. To the risk of repetition, I would highlight that Clause 13 of such agreement would not in any way enure to the benefit of the
Railway in view of the fact that they are also to be blamed for the breach of contract.
No doubt, on the one hand, the petitioner would air her grievance that because of the breach committed by the Railway authorities, she
sustained loss in business as well as the loss of interest over such huge amounts. Whereas the Railway authority would submit by pointing out that
had she continued, they would have got by this time several lakhs as licence fees or through somebody else by allowing them to run the two
wheeler stand, they would got licence fees. As such, they would raise their accusative finger as against the petitioner.
To the risk of repetition, without being tautologus, I would point out that in view of the discussion supra, both should be blamed for the breach
and in such a case, there is no point in each one claiming damages as against other.
Accordingly, the Railway Administration is directed to return the amount of Rs. 7 lakhs (Rupees Seven Lakhs only) deposited by the petitioner
towards security on or before 13.01.2008 without interest. Out of the another sum of Rs. 7 lakhs paid towards one year licence fee, after
deducting 1/4 th (quarter) i.e, 1,75,000/- (Rupees One Lakh and Seventy Five Thousand only), the remaining amount of Rs. 5,25,000/- shall also
be paid without interest to the petitioner within the aforesaid stipulated time.
The learned Counsel for the Railway Administration would make an extempore submission that the Railway administration may be given liberty
to call for the fresh tender for running cycle stand and proceed further. I make it clear that the Railway administration is at liberty to do so, without
any more loss of time.
In the result, this petition is disposed of. No costs.