Delhi High Court
Sundaram Parcel Service vs Union Of India And Ors on 16 October, 2015
Author: Manmohan
28 to 42
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6880/2013 & CM APPL. 14902/2013
SUNDARAM PARCEL SERVICE ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
WITH
+ W.P.(C) 7077/2013 & CM APPL. 15273/2013
MANGLAM EXPRESS CARGO PVT. LTD ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 2629/2014 & CM APPL.5463/2014
GUNEET SINGH ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
W.P.(C) 6880/2013 & Ors. Page 1 of 9
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 7090/2013 & CM APPL.15296/2013
MANGLAM EXPRESS CARGO PVT. LTD ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 7095/2013 & CM APPL. 15301/2013
M/S SAINATH CARGO ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 7102/2013 & CM APPL.15313/2013
M/S SAINATH CARGO ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
W.P.(C) 6880/2013 & Ors. Page 2 of 9
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 7196/2013 & CM APPL. 15474/2013
S.L. ENTERPRISES ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 8173/2013 & CM APPL. 17242/2013
SHABBU MIYA ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 117/2014 & CM APPL.201/2014
CHANDRA KUMAR ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
W.P.(C) 6880/2013 & Ors. Page 3 of 9
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 934/2014 & CM APPL.1891/2014
MOHD. UZAIR ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 1005/2014 & CM APPL.2035/2014
AMIT CARGO TRANSPORT SERVICE ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 1511/2014 & CM APPL.3153/2014
NARENDER KUMAR ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
W.P.(C) 6880/2013 & Ors. Page 4 of 9
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 1900/2014 & CM APPL.3962/2014
M/S. SHREE SHYAM RAIL PARCEL ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 2382/2014 & CM APPL.5008/2014
KAMAL SINGH RAWAT ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
versus
UOI AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
AND
+ W.P.(C) 4749/2014 & CM APPL. 9461/2014
SULTAN HUSSAIN ..... Petitioner
Through: Mr. Ashish Mohan with Mr. Mohit
Kumar, Advocates
W.P.(C) 6880/2013 & Ors. Page 5 of 9
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jagjit Singh, Sr. Standing counsel
with Ms. Nisha, Advocate.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
% Date of Decision: 16th October, 2015
JUDGMENT
MANMOHAN, J: (Oral)
1. Present batch of writ petitions has been filed primarily seeking a writ,
order or direction in the nature of prohibition restraining the respondents
from charging enhanced license fee in terms of Freight Marketing Circular
No. 21 of 2013 dated 25th September, 2013 on the ground that it does not
apply to the lease contract of the petitioners which are statutory in nature.
2. Learned Predecessor of this Court at the ad interim stage passed
orders directing that the impugned Circular dated 25 th September, 2013 shall
not be given effect to with respect to petitioners.
3. It is submitted by learned counsel for petitioners that the revised rates
are only applicable to non-leased parcel traffic and it is specifically
inapplicable to leaseholders such as the petitioners who operate leased
parcel traffic. According to petitioners, the intention of the Railway Board
was clear that the revised rates were not to apply to leased parcel traffic.
Petitioners state that on misreading the document, respondent no. 1 is
applying the rates to the petitioners which is absolutely untenable and
against the clear terms of the Freight Marketing Circular No. 21 of 2013.
4. Mr. Ashish Mohan, learned counsel for petitioners states that even in
terms of Paragraph 1 of the Freight Marketing Circular No. 25/2012 dated
29th November, 2012 read with Clause 3.1 of the Standard Form Contract
executed between the parties, the rates of the petitioners are not liable to be
enhanced. According to him, even if the stand of the Northern Railway
were to be accepted, in terms of Clause 3.3 of the Agreement, any budgetary
increase or other increase in tariff which is made during the currency of
contractual period can only be made applicable to leased contracts. He
further contends that the contract period as per Clauses 1.1 and 3.1 of the
Agreement executed between the parties is for a period of three years, with
effect from 9th October, 2013 for instance in CWP 7245/2013. According to
him, the enhancement of rates introduced vide Circular No. 21/2013 dated
25th September, 2013 is not during the currency of the contract but rather is
prior to the contract. The same cannot, therefore, be applied to the
petitioners even in terms of Circular No. 25/2012 dated 29 th November,
2012 read with Clause 3.3 of the Standard Form Contract executed between
the parties.
5. On the other hand, Mr. Jagjit Singh, learned senior standing counsel
for respondents states that Clause 3.3 is part and parcel of the contract
executed between the parties. According to him, the said Clause makes it
clear that budgetary and any other increase in the tariff rates shall also be
made applicable to the leased parcel traffic during the currency of the
contract. He contends that said Clause lays down that even lumpsum leased
freight shall be increased on pro rata basis.
6. Mr. Jagjit Singh reiterates that the contract was concluded on 30 th
August, 2013 when the tender of the petitioners was accepted. He submits
that as the tender was accepted prior to the increase in tariff, namely, 25th
September, 2013 w.e.f. 1st October, 2013, the contractual period starts from
the said acceptance date and not 9th October, 2013. According to him, as the
Railways issued letter dated 25th September, 2013 for budgetary increase /
increase of lease money on pro rata basis as per the budget during the
currency of the contract, that means, after 30th August, 2013, the effective
date of start of work cannot be termed as date of contract as has been urged
by the petitioners.
7. Having heard learned counsel for parties, this Court finds that
Paragraph 1 of Freight Marketing Circular No.25/2012 dated 29 th
November, 2012 and the pari material Clause 3.3 of the Standard Form
contract executed between the parties reads as under:-
"Budgetary or any other increase in the tariff rates shall be
made applicable in case of leased traffic during currency of
contractual period. The lumpsum leased freight shall be
increased accordingly on pro-rata basis."
(emphasis supplied)
8. Even if the stand of the respondents were to be accepted, then also in
terms of Clause 3.1 of the Agreement, any budgetary increase or other
increase in traffic rates which is made during currency of contractual period
can only be made applicable to leased contracts. The contract period as per
Clauses 1.1 and 3.1 of the Agreement dated 18th October, 2013 executed
between the parties is for a period of three years w.e.f. 09 th October, 2013.
Thus the enhancement of rates introduced vide Circular No.21/2013 dated
25th September, 2013 is not during the currency of the contract but rather is
prior to the contract.
9. The respondents' argument that the contractual period starts once the
tender has been accepted, fails to appreciate the distinction between
expressions 'the contractual period' and 'post-contractual period'. The
respondents' arguments is also is contrary to facts inasmuch as the validity
of the contract has also been defined in the contract. In the agreement for
Leasing of Parcel Space in Brake Vans, the relevant portion of the Clauses
3.1 is reproduced hereinbelow:-
"3.1 The contract for leasing will commence with effect from
09/10/2013 (date/moth/year) and it will remain valid up to
08/10/2016 (date/month/year) for a period of three years......"
(emphasis supplied)
10. Consequently the same cannot be applied to the petitioners even in
terms of Circular No.25/2012 dated 29th November, 2012 read with Clause
3.3 of the Standard Form contract executed between the parties. On this sole
ground, the present writ petitions are allowed. The other contentions and
submissions urged by the petitioner are left open. With the aforesaid
observations, present writ petitions and applications stand disposed of.
MANMOHAN, J
OCTOBER 16, 2015
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