D.G.Raj Commercial Pvt. Ltd v. The Union of India and 9 Ors

ORDER

07.03.2024

Heard Shri D. Das, learned Senior Counsel for the petitioner assisted by Shri G. Alam, learned counsel. Also heard Shri B. Sharma, learned counsel representing the Railways, who submits that affidavit-in-opposition has also been filed in this case on 05.06.2023. In view of the submissions made by the learned Senior Counsel for the petitioner at the outset, this Court may not be required to go deep into the facts of the case and the inter se merits of the rival parties. However, a basic narration of the facts would be necessary. A tender process was initiated vide a notice dated 08.12.2017 for leasing of a Parcel Cargo Express Train on round trip basis from New Tinsukia to Shakur Basti at Delhi for a period of 6 years. It is the case of the petitioner that pursuant to the same, the petitioner had deposited an amount of Rs.50,00,000/- as the Earnest Money Deposit (EMD) as a pre-condition for participating in the tender process. As per the petitioner, it was declared to be the highest tenderer and accordingly a Letter of Acceptance was issued on

19.02.2018. As per the petitioner, the Security Deposit was submitted by way of FDRs on 12.03.2018 and a contention has been made that the remaining Rs.50,00,000/- was to be adjusted from the EMD. However, on such denial of request, the balance of Rs.50,00,000/- was tendered by a way of 2 FDRs whereafter the impugned letter dated 01.05.2018 was issued forfeiting the petitioner's EMD and the tender was discharged. Page No.# 4/5 Shri Das, the learned Senior Counsel for the petitioner submits that there is no justification for issuing the impugned letter dated 01.05.2018 and a hyper technical approach was taken by the Railways without taking into consideration the relevant facts and circumstances. He has otherwise informed this Court that the period of 6 years of the contract is over and therefore, the issue of discharge of the tender is not required to be gone into at this stage. He has further informed this Court that a Departmental Appeal was preferred which is still pending. As regards the affidavit-in-opposition, Shri Das, the learned Senior Counsel submits that a rejoinder affidavit was filed on 17.11.2023. Shri Sharma, the learned counsel for the Railways, while broadly accepting the facts and background has however denied the payment of the balance amount. By referring to the affidavit-in-opposition, he submits that the balance amount was never accepted by the Railways and there was no provision for adjustment with the EMD. The learned Standing Counsel has however submitted that he would not oppose in principle regarding a direction for consideration and disposal of the appeal filed on 25.05.2018. Rival contentions have been duly considered. This Court has noticed that while issuing notice vide order dated

12.10.2018, there was a direction not to initiate fresh tender process for the same route. This Court has however been informed by the learned counsel for the petitioner that due to non feasibility, the said services is not presently under operation and in any case, there was an embargo by this Court vide order dated

12.10.2018 which is operating till date. Be that as it may, this Court is of the opinion that taking into consideration the developments and the efflux of time, no effective purpose would be served Page No.# 5/5 by going into the merits of challenge regarding the entire process. At the same time, this Court has noted that an appeal was preferred by the petitioner which is to be considered. This Court has been informed that only because of the fact of pendency of this case, such appeal has not been considered till date. In view of the above, this Court is of the opinion that interest of justice would be served if this writ petition is disposed of with a direction to consider and dispose of the appeal dated 25.05.2018 by the Appellate Authority in accordance with law. Ordered accordingly. It is also directed that at the time of consideration of the appeal, the petitioner be afforded an opportunity of hearing by its representative. Since this matter is a long pending one, let a date be notified by the Appellate Authority for consideration of the appeal which is required to be on or before 28.03.2024. Writ petition accordingly stands disposed of. Interim order passed earlier accordingly stands vacated.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010236602018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7393/2018o D.G.RAJoCOMMERCIALoPVT.oLTD.o HAVINGoITSoREGD.oOFFICEoATo8226,oFIRSToFLOOR,oSREEToNO.o5,oMULTANIo DHANDA,oPAHARoGANJ,oDELHI-o110055,,oREP.oBYoITSoAUTHORISEDo REPRESENTATIVEoSHRIoPRABHAKARoPANDEY,oAGEDoABOUT-o27oYRS,oS/O- SHRIoCHANDESHWARoPANDEY,oR/O-oFLAToNOo1C,oFIRSToFLOOR,o PRAHRITIKoNIBAAS,oKANWACHALoROAD,oGHY,oP.O.oSILPUKHURI,oP.S.o CHANDMARI,oDIST-oKAMRUPo(M),oASSAM,oPIN-o781003 VERSUSo THEoUNIONoOFoINDIAoANDo9oORS.o REP.oBYoTHEoGENERALoMANAGER,,oNORTHEASToFRONTIERoRAILWAY,o MALIGAON,oGHY-11 2:THEoRAILWAYoBOARD oREP.oBYoTHEoSECY. oMINISTRYoOFoRAILWAYS oGOVT.oOFoINDIA oRAILoBHAWAN oNEWoDELHI-o110001 3:THEoDIRECTORoOFoFREIGHToMARKETING oRAILWAYoBOARD oGOVT.oOFoINDIA oRAILoBHAWAN oNEWoDELHI-o110001 4:THEoGENERALoMANAGER oNORTHEASToFRONTIERoRAILWAY oMALIGAON oGHY-11 Page No.# 2/5 5:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GHY-11 6:THE CHIEF COMMERCIAL MANAGER (FM) NORTHEAST FRONTIER RAILWAY MALIGAON GHY-11 7:THE DIVISIONAL RAILWAY MANAGER TINSUKIA DIVISION NORTHEAST FRONTIER RAILWAY TINSUKIA DIST- TINSUKIA ASSAM PIN- 786125 8:THE ADDL. DIVISIONAL RAILWAY MANAGER TINSUKIA DIVISION NORTHEAST FRONTIER RAILWAY TINSUKIA DIST- TINSUKIA ASSAM PIN- 786125 9:THE DIVISIONAL COMMERCIAL MANAGER TINSUKIA DIVISION NORTHEAST FRONTIER RAILWAY TINSUKIA DIST- TINSUKIA ASSAM PIN- 786125 10:THE SENIOR DIVISIONAL COMMERCIAL MANAGER TINSUKIA DIVISION NORTHEAST FRONTIER RAILWAY TINSUKIA DIST- TINSUKIA ASSAM PIN- 78612 Advocate for the Petitioner : MR. P D NAIR Advocate for the Respondent : SC, NF RLY Page No.# 3/5 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI