IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 15.07.2011
+W.P.(C) No. 4781/2011 & CM No.9697/2011
Sakhi Rail Parcel Services ......Petitioner
Through: Mr. Ashish Mohan, Advocate.
Vs.
Union of India & Ors. ......Respondents
Through: Mr. Joydeep Majumdar, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
KAILASH GAMBHIR, J.Oral :
*
1 By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks directions to W.P. (C) No. 4781/2011 Page 1 of 6 direct the respondent to unconditionally extend the lease of the petitioner in respect of parcel space in Train No. 2190 Ex. HNZM to JBP w.e.f. 18.9.2010 till 17.9.2012 in terms of Clause (E) of the Comprehensive Parcel Leasing Policy (CPLP) and clause 18 of the Contract between the parties.
2. Brief facts relevant for deciding the present petition are that the petitioner was allotted the contract of leasing of 04 tonnes FSLR space in Train No. 2190 Ex. HNZM to JBP for an initial period of three years w.e.f. 18.9.2007 to 17.9.2010. As the lease was scheduled to expire on 17.9.2010, the petitioner vide letter dated 21.5.2010 sought extension of the lease under the terms and conditions as stipulated in the CPLP as well as the contract and to the utter surprise of the petitioner, the respondent vide its order dated 15.9.2010 granted extension for a period of two years as stipulated in the policy or till finalization of fresh tender whichever is earlier. As per the petitioner, the petitioner is entitled to an unconditional extension for a period of two years in terms of the W.P. (C) No. 4781/2011 Page 2 of 6 comprehensive parcel leasing policy as well as the contract and hence feeling aggrieved with the same, the petitioner has preferred the present petition.
3. Mr. Ashish Mohan, learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the judgment of this court in Kishan Freight Forwarders Vs. UOI (MANU/DE/2189/2011) decided on 2.6.2011.
4. Mr. Majumdar, learned counsel for the respondent submits that the petitioner was not granted extension of the contract in Train No. 2190 as per Clause E of the Comprehensive Parcel Leasing Policy and clause 18 of the Contract as penalty was imposed upon the petitioner on account of overloading of parcels. Counsel thus submits that the case of the petitioner is not covered by the judgment of this court in Kishan Freight Forwarders case (Supra). Counsel for the respondent also submits that another case cited by the petitioner will not attract to the facts of the W.P. (C) No. 4781/2011 Page 3 of 6 present case as there the contract was in respect of 23 tonnes of V.P. cases and not of parcels of 4 tonnes.
5. I have heard learned counsel for the parties.
6. The only objection taken by the respondent is that extension of contract was not granted in favour of the petitioner as the petitioner had violated the clause of the Comprehensive Parcel Leasing Policy and penalty was imposed upon the petitioner once for overloading of the parcels. For better appreciation of clause 18 of the contract, the same is reproduced as under:
"Extension of lease contract:
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 lumpsum leased freight rate subject to satisfactory performance by the leaseholder, without any penalty for overloading or violation of any provision of the contract."
7. Undoubtedly, the said clause clearly stipulates that extension of the lease would be permissible only subject to the satisfactory performance of the lease holder and the W.P. (C) No. 4781/2011 Page 4 of 6 second condition being, without there being any penalty imposed on the contractor for overloading or for violation of any provision of the contract. The petitioner has admitted at bar that there was only one instance of violation on its part when there was excess loading. Counsel for the respondent has also not disputed that there was a single instance of over loading on the part of the petitioner during the entire period of the lease.
8. This court in Kishan Freight Forwarders (Supra) has comprehensively dealt with all the issues and the controversy involved in the present case is squarely covered by the judgment in the said case. In fact the respondent had granted extension to the petitioner for a period of two years but with the condition that the same would come to an end even before the expiry of the said two years period if in the meanwhile, fresh tenders are finalized. It would be, therefore, quite evident that the petitioner was granted an extension despite the fact that the penalty was imposed upon the petitioner once due to the over loading of the W.P. (C) No. 4781/2011 Page 5 of 6 consignment. It is, therefore, quite apparent that the imposition of penalty by the respondent due to overloading of parcels by the lease holders is not being viewed seriously by the respondent to deny extension of the lease period as envisaged under Clause 18 of the said contract.
9. In the light of the aforesaid discussion, the respondent is directed to unconditionally extend the lease of the petitioner for a period of two years w.e.f. 16.9.2010 till 17.9.2012 in terms of clause (E) of the Comprehensive Parcel Leasing Policy and Clause 18 of the Contract for FSLR space in Train No. 2190 Ex. HNZM to JBP.
10. With the above directions, the present petition stands disposed of.
KAILASH GAMBHIR, J JULY 15, 2011 mg W.P. (C) No. 4781/2011 Page 6 of 6