Page No.# 1/14 vs Union Of India And 5 Ors
2025 Latest Caselaw 5651 Gua

Gauhati High Court

Page No.# 1/14 vs Union Of India And 5 Ors on 24 June, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

                                                               Page No.# 1/14

GAHC010076032023




                                                          2025:GAU-AS:8454

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/2002/2023
         ANUP TRADE AND TRANSPORT (P) LTD
         A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND
         HAVING ITS REGISTERED OFFICE AT H. NO. 51, SUNDARPUR MAIN LANE,
         OPP-BHARAT PETROLEUM, ZOO ROAD, GUWAHATI-781005, PREVIOUSLY
         REGISTERED OFFICE AT NEHA APARTMENT, FLAT NO. 7102 (A) ATHGAON,
         GUWAHATI, ASSAM, AND IS REPRESENTED BY ITS DULY AUTHORIZED
         MR. ANUP KUMAR JASRASARIA, S.O LATE RAM AVTAR JASRASARIA, AGE
         50 YEARS

         VERSUS

         UNION OF INDIA AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF INDIA, MINISTRY OF CONSUMER AFFAIRS, FOOD AND
         PUBLIC DISTRIBUTION, GOVERNMENT OF INDIA, LODHI ROAD, NEW
         DELHI, INDIA

         2:FOOD CORPORATION OF INDIA
          (A STATUTORY BODY UNDER THE FOOD CORPORATION ACT
          1964) REGIONAL OFFICE
          REPRESENTED BY ITS CHAIRMAN
          MT TOWER
          G.S. ROAD
          PALTAN BAZAR
          GUWAHATI-08
         ASSAM

         3:THE CHAIRMAN AND MANAGING DIRECTOR
          FOOD CORPORATION OF INDIA
          REGIONAL OFFICE
          MT TOWER
          G.S. ROAD
          PALTAN BAZAR
          GUWAHATI-08
         ASSAM
                                                                       Page No.# 2/14


            4:THE GENERAL MANAGER (R)
             FOOD CORPORATION OF INDIA
             REGIONAL OFFICE
             MT TOWER
             G.S. ROAD, PALTAN BAZAR
             GUWAHATI-08, ASSAM

            5:THE DEPUTY GENERAL MANAGER (R)
             FOOD CORPORATION OF INDIA
             REGIONAL OFFICE
             MT TOWER
             G.S. ROAD, PALTAN BAZAR
             GUWAHATI-08, ASSAM

            6:THE AREA MANAGER
             FOOD CORPORATION OF INDIA
             DISTRICT OFFICE, SILCHAR, ASSAM.

                                    BEFORE
               Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI


Advocate for the petitioner   : Shri G. N. Sahewalla, Sr. Advocate.
                                Ms. S. Todi, Advocate.
Advocates for respondents     : Shri B. K. Singh, SC, FCI.

Date of hearing               : 27.05.2025
Date of judgment              : 24.06.2025


                              JUDGMENT & ORDER

The instant writ petition has been filed assailing an order dated 26.02.2023, passed by the Disputes/Grievance Redressal Committee of the Food Corporation of India (FCI), whereby the claim of the petitioner has been rejected.

2. There is a chequered history involved in this litigation.

Page No.# 3/14

3. The Respondent No. 2 had issued a Notice Inviting Tender (NIT) dated 30.03.2015, for appointment of regular contractors for transportation of food grains. The Petitioner had submitted its tender for the route against Sl. No. 5, i.e, ex-Railway Siding Salchapra to FCI, FCD, Chandrapur (Tripura), via weighbridge whereby the distance was notified to be 292 KM. The petitioner had submitted its bid @ Rs.2759/- per MT which was the L1 rate and accordingly the petitioner was awarded the work. It is the case of the petitioner that as per the procedure, for finding the lowest rate, the quoted rate is converted to per kilometre. The formal work order was issued on 02.06.2015. However, on execution of the work, the petitioner found that the distance was more than 292 KM, and, therefore had made numerous representations to the FCI authorities which ultimately led to the FCI to form a Committee by an order dated 19.08.2016, to find out the actual distance. The Committee had accordingly, made a physical verification and submitted a report as per which, the distance was found to be 343.2 KM. It is contended that in the said report, it was mentioned that there were three ways leading to the main road National Highway via Kalain. However, lorries/trucks could ply through only one road and the other two roads pass through populated villages and private tea estate and hence it would not have been possible for lorries/trucks to ply through those two roads.

4. The petitioner had accordingly claimed the differential amount which was, however, rejected vide an order dated 20.01.2017. The said rejection order was the subject matter of challenge in WP(C)/ 3138/2018. Based on an earlier order passed in another writ proceeding, the writ petition filed by the petitioner was allowed on 22.05.2019 against which the Corporation had preferred WA/36/2020 in which the Hon'ble Division Bench interfered with the judgment Page No.# 4/14

and directing the petitioner to approach the Disputes Redressal Committee. However, on such approach the Committee had rejected the claim vide order dated 17.08.2022 which was challenged by the petitioner in WP(C)/ 6618/2022. The matter was remanded back for a fresh consideration. The Committee however passed another order dated 26.02.2023 of rejection and accordingly the present writ petition has been instituted.

5. Heard Shri G. N. Sahewalla, learned Senior Counsel assisted by Ms. S. Todi, learned counsel for the petitioner. Also heard Shri B. K. Singh, learned Standing Counsel, FCI.

6. The learned Senior Counsel for the petitioner has contended that in a similar circumstance, a party had earlier approached this Court by filing writ petition i.e. WP(C)/4117/2017, which was allowed vide judgment dated 03.04.2018. In terms of the said judgment, the writ petition filed by the petitioner was also allowed vide judgment dated 22.05.2019, whereby the respondents were directed to make the payment of the entire distance of 343.2 KM. The learned Senior Counsel for the petitioner has submitted that against the aforesaid judgment, the respondent FCI had preferred Writ Appeal i.e. WA/36/2020, which was however allowed vide judgment dated 24.02.2020.

7. The grounds on which the appeal was allowed were the availability of an alternative remedy to approach the Grievance Redressal Committee and further observation was made that the Committee should dispose of the representation by adhering to the principles of good faith.

8. The learned Senior Counsel has submitted that in the present case, an affidavit-in-opposition has been filed by the respondent FCI, in which a new fact has been brought on record. It has been stated that the distance from Page No.# 5/14

Salchapra siding via Weighbridge - Badarpurghat- Silchar Diversion Point - Teliamora- FCDFSD - Chandrapur - Amrapur is approximately 290 KM, and such determination has been made based on the examination of the maps, identifying it as the shortest motorable route. Therefore it was sought to be justified that the claim for the excess distance of 51.25 KM cannot be considered.

9. The learned Senior Counsel has submitted that the report of the present Committee which was constituted vide order dated 17.07.2023, cannot be inconsistent with the findings of the earlier Committee constituted vide order dated 19.08.2016, had concluded that though there were three routes available, two of those were not motorable. The learned Senior Counsel has referred to the following observations:

"There are three ways that lead to main road National highway via Kalain. But out of that lorries/trucks can ply on only one road. The other two roads goes through populated village area and private Tea Estate and is not possible for trucks/lorries to ply via those two roads."

10. The learned Senior Counsel has also drawn the attention of this Court to the affidavit-in-reply filed by the petitioner, wherein it has been specifically stated that although certain new roads may have been developed, the same cannot be considered for the purpose of evaluation a contract that was awarded in the year 2015, as the transportation in question was carried out during that period using existing motorable roads. Reliance is also placed on the additional affidavit filed in the present proceedings, which has further dealt and supported the aforesaid contention. He has also submitted that against the judgment dated 03.04.2018, passed in WP(C)/4117/2017, the respondents had preferred WA 316/2018 (FCI & Ors Vs. NE Trade and Transport and Anr.), which Page No.# 6/14

was dismissed by the Hon'ble Division Bench on 07.05.2019. He has pressed into service the observations made by the Hon'ble Division Bench in paragraph 15, which is extracted herein under:

"15. It is a settled position that the terms and conditions of a tender process notified are not to be deviated by the tendering authority in the ordinary course and the bidders are required to abide by the terms and conditions so notified scrupulously. As it was the requirement of the NIeT for the bidders, in the instant case, to quote their rates as per MT per KM basis, the petitioner firm had, in clear terms, quoted its rate at Rs. 11.41/- per MT per KM and it does not lie on the part of the appellants herein to add anything further therein, when the condition in the NIeT clearly specified to submit the rate in that manner. As the NIeT clearly mentioned the distance from Ex-Rly. Siding, Salchapra to FCI FSD Arundhutinagar (Tripura) via weighbridge as 243 KMs, it was not open for the appellants to re-calculate the rate quoted by the L-1 bidder on any other basis to their convenience by referring to the rate quoted by the L-2 bidder who did not quote in the specific manner stipulated by the condition, noted above, in the NIeT and when they found out that the distance they specified in the NIeT for the intending bidders to quote their rates was incorrect. The appellants appeared to have worked out the revised rate of Rs. 9.48/- per MT per KM as if the L-2 bidder had quoted its rate of Rs. 2,799/- for the entire 295.10 KMs when the appellants herein had quoted the distance specifically as 243 KMs. The basis of the revised rate of Rs. 9.48/- per MT per KM was the rate quoted by L-2 tenderer. The said L-2 tenderer submitted its bid for the work in question at Rs. 2,799/-. In terms of the clause in the NIeT, quoted in paragraph 4 herein above, the respondent authorities converted the said amount of Rs. 2,799/- into per MT per KM basis taking the said rate quoted by the L-2 tenderer for the distance of 295.10 KMs, instead of 243 KMs, and arrived at the said revised rate of Rs. 9.48/- per MT per KM. The distance of 295.10 KMs was only found at a later Page No.# 7/14

point of time by the appellants when it was represented to them by the petitioner firm. It does not also lie on the part of the appellants herein to contend that the petitioner firm being a regular contractor, was aware of the distance between Ex-Rly. Siding, Salchapra and FCI FSD Arundhutinagar (Tripura) via weighbridge as in a tender process, there is no discretion for assumption to the bidders. It is not the case of the appellants that they had floated the tender process for transportation of food grains between the two locations for the first time. Rather, the appellants are also in the same business for a long time. It may be noted that there is neither any material on record nor it was contended on behalf of the appellants that the L-2 bidder after being declared L-2 bidder and the petitioner firm, having been declared L-1 bidder, was awarded with the contract, the L-2 bidder had protested, at any time, by mentioning before the appellants that their rate was Rs. 9.48/- per MT per KM for the entire distance of 295.10 KMs and not for 243 KMs. It was never explained by the appellants as to why, keeping the relevant clause of NIeT quoted in paragraph 4 above into consideration, the rate of Rs. 2,799/- quoted by the L-2 bidder was not found to be the lowest at the time of bid evaluation and award of the transport contract in favour of the petitioner firm."

11. The learned Senior Counsel has also placed before this Court another judgment dated 13.09.2022 passed by a Coordinate Bench in WP(C)/214/2019 (M/s G. B. Chowdhury Holdings Pvt. Ltd. Vs Food Corporation of India & 2 Ors) against which the respondent FCI has preferred WA/26/2023, which was also dismissed by the Hon'ble Division Bench on 09.08.2023. He has submitted that in paragraph 11 of the said judgment, the earlier judgment passed in WA/316/2018 has been distinguished. The learned Senior Counsel submits that the case of the petitioner is squarely covered by the judgment passed by the Hon'ble Division Bench and seeks parity on that basis.

Page No.# 8/14

12. Per Contra, Shri Singh, the learned Standing Counsel, FCI, has submitted that, as per the NIT dated 30.03.2015, the rates should be quoted as per metric ton per kilometre, which is in accordance with the Model Tender Form (MTF). He submits that if the rates are to be quoted in any other manner, the same would be converted to a per MT/km basis by computing the actual distance. He has further submitted that the petitioner had quoted a consolidated rate of Ra. 2759/- per metric ton for the entire distance. Attention of the Court has been drawn to Clause B(II) of the MTF, wherein the bidders were required to make themselves fully aware of the site, location, and condition of the transport route. He has also contended that the observation made by the Committee on the aspect of alternate roads is pertaining to another contract that is not connected to the present road.

13. The learned counsel for the respondent Corporation has also referred to the Clause XVIII of the MTF dealing with 'Rates', and submitted that, as per the said Clause, all rates shall be firm and not subject to escalation. He has drawn the attention of the Court to the communication of acceptance at the rate of Rs. 2759/- per metric ton on 29.04.2015, whereafter the work order was issued on 02.06.2015 and the appointment was made at the rate of Rs. 2759/- per metric ton. It is further submitted that against the judgment dated 22.05.2019, passed in WP(C)/3138/2018, the FCI had preferred Writ Appeal/36/2020. In the said judgment, it was categorically observed that the applicable rate would be per metric ton per kilometre. Emphasis has also been made on the observation made herein that the rate quoted should not be interfered with, and is further contented that at no stage the petitioner had raised any bills on per metric ton per kilometre basis.

14. He has also referred to the map and the notification of the State Highway Page No.# 9/14

dated 23.04.2005 to contend that the alternate route relied upon by the present Committee was very much in existence since 2005, and yet the earlier Committee had disregarded it and considered a longer route, thereby inflating the transportation distance. It has also been pointed out that the addendum issued in connection with the tender process was never challenged by the petitioner. He has also placed before this Court copy of an order dated 20.08.2024 passed by the Hon'ble Supreme Court in SLP(C) No. 24370 of 2024, wherein it has been held that the judgment rendered in the case of G.B. Holdings (supra) was not to be treated as a precedent. He has finally submitted that there is no merit in the petition and even if there is any grievance, the petitioner should approach the Civil Courts.

15. Shri Sahewalla, the learned Senior Counsel for the petitioner, in his rejoinder, has submitted that the rate quoted was based on the actual and physically verified distance as assessed by the earlier Committee constituted by the respondent Corporation. He has emphasized that although there may exist two alternate routes, it is the admitted fact that such routes are not motorable by trucks or lorries, and hence, cannot be considered practical alternatives. He further contents that the subsequent Committee relied upon map-based assessments and did not undertake any physical verification, which renders its findings materially flawed and legally untenable. Accordingly, it is submitted that the impugned order dated 26.02.2023 is unsustainable in law and is liable to be set aside. The petitioner prays for a direction to the respondent Corporation to make payment for the excess distance covered by the petitioner in discharging of its obligations as per the contract in question.

16. The rival submissions have been duly considered and the materials placed before this Court have been carefully perused.

Page No.# 10/14

17. It is evident that the foundation of the challenge to the impugned order dated 26.02.2023 rests upon the deviation between the stipulated distance of 292 kms as mentioned in the NIT and the actual distance of 343.2 km as verified during execution. It is not in dispute that the petitioner had quoted a rate of Rs. 2759/- per MT. The petitioner has contended that the issue was already decided by this Court in WP(C)/3138/2018, whereby such claim was allowed in view of the categorical finding of the Committee of the respondent Corporation itself. The said writ petition was disposed of vide judgment dated 22.05.2019, wherein a direction was issued to make payment for the actual distance covered in the execution of the contract. It may also be noted that prior to the said judgment, a similar writ petition was filed by M/s N.E. Trade being WP(C)/4111/2017, was allowed by judgment dated 03.04.2018, against the said judgment Writ Appeal/316/2018 was preferred which was dismissed on 07.05.2018.

18. It is, however, correct on the part of the respondent Corporation to contend that against the judgment dated 22.05.2019 passed in WP(C)/3138/2018, Writ Appeal/36/2020 was preferred, which was subsequently allowed by judgment dated 24.02.2020. However, it is pertinent to note that such interference by a Writ Appellate Court was only on the availability of a Grievance Redressal Committee, and accordingly, the matter was remitted to the said Committee for fresh consideration with specific directions, the relevant portion of which has been extracted:

"15. We are, however faced with the situation wherein e-tender itself mentioned the distance to be 292 Kms. The contractor quoted the rate accordingly on the presumption that the distance in fact and indeed would be 292 kms.

Page No.# 11/14

Immediately on initiation of the contract when the goods were transported, it came to the notice of the contractor that the distance in fact was more and therefore, in the considered opinion of the Court, well in time the contractor objected to the distance vide communication dated 19.6.2015 asking the FCI to recalculate the distance because there appeared to be an error. It is further evident from the record that the objection taken by the contractor was noticed by FCI and a committee was constituted for the purposes of calculating the distance. Indeed the objection of the contractor was found to be based on facts. Instead of 292 Kms, the distance for transportation of goods has been found to be 343.2 Kms.

To this effect, there is no dispute and the appellant FCI admits."

19. The Hon'ble Division Bench has also made an elaborate discussion on the aspect of good faith and made the following observations:

"It is hoped that the Disputes/Grievances Redressal Committee on reference of the matter to it would adhere to the principle of "good faith" as explained above, for good faith between contracting parties should be impliedly inhered in the conduct of every party to the contract"

20. It is also on record that despite such remand, no timely action was initiated by the Committee, compelling the petitioner to file Cont. Case (C)/402/2022. Only after the initiation of the contempt proceedings was the claim of the petitioner hastily rejected by the Committee vide order dated 17.08.2022.

21. As observed above, the aforesaid decision was the subject matter of WP(C)/6618/ 2022, in which this Court had passed an order dated 19.10.2022, remanding the matter as the impugned order was passed without any reasons Page No.# 12/14

and upon such remand, the fresh rejection order was made on 26.02.2023. The learned counsel for the respondent have submitted that the judgment of the writ appellate court passed in WA/26/2023 dated 09.08.2023 has been interfered by the Hon'ble Supreme Court and has also placed on record the copy of the said order dated 20.08.2024. However, on perusal of the said order, it appears that the Hon'ble Supreme Court was not inclined to interfere with the impugned judgment and had disposed of the appeal. However, a further observation has been made that the question of law would be open and the impugned judgment would not be quoted as a precedent and in terms of that this Court is of the view that in a fresh observation is required to be made.

22. In the present case, the petitioner's primary contention is that the actual distance traversed for transportation was 343.2 km, which is an excess of 292 km as stipulated in the NIT. The petitioner relies on the initial report of the Committee, which had physically verified the route and concluded that the two alternate routes are not motorable. On the other hand, the learned counsel for the respondent Corporation has submitted that the Committee which had reconsidered the matter had come to a finding that such a claim is not applicable.

23. So far as the aspect of alternate roads are concerned, this Court has however minutely examined the report and the inability to ply lorries/trucks by two other roads is not in the context of the work order in questions but for a different work starting from Bihara to FSD Chandrapur. It is, however, on record that the earlier Committee constituted by the respondent Corporation had submitted a report after conducting physical verification of the route. It is also not disputed that this Committee had traversed the distance physically before coming to its findings. The relevant observation in the said report is as follows:

Page No.# 13/14

"As per FCI, RO, Guwahati's Office Order No. S&C/1733/Assam/2015 dated 19.08.2016, the undersigned committee members of RO as well as DO Silchar proceeded to verify the shortest motorable distance from railway siding Salchapra to FSD-Arundhati, Nanda Nagar and Chandrapur and Ex-Railway siding Bihara to FSD Chandrapur on 23.08.2016 by a vehicle (Scorpio bearing registration no.) hired by District Office, Silchar."

24. In contrast, the subsequent Committee which had submitted the report dated 26.02.2023 had prepared the same on map-based assessments. This Court finds force with the submission made on behalf of the petitioner, that an assessment made long after the relevant period, with the availability of new roads, cannot be the correct basis for determining the applicable distance.

25. It is the view of the Court that the availability of the route and the motorable aspect has to be considered in the contemporaneous period when the NIT was issued, i.e., 03.03.2015. Any such assessment made much later, that too on the basis of developments that occurred subsequently, including construction of new roads, would be wholly unfair and cannot be accepted by this Court. What is also of relevance is that the earlier Committee was not an independent third party but a Committee instituted by the respondent Corporation itself, and had taken into consideration all relevant aspects, including the most important factor namely, physical verification before arriving at the conclusion.

26. While the learned counsel for the respondent has emphasized that the rate has to be determined on per MT per KM basis, this Court is of the opinion that when there is a material disparity in the notified distance itself, i.e., 292 km as per the NIT vis-à-vis the 343.2 km as physically traversed, such a contention Page No.# 14/14

cannot be sustained.

27. In view of the foresaid facts and circumstances, this Court is of the considered opinion that the impugned communication dated 26.02.2023 issued by the Dispute Redressal Committee is unsustainable in law and is accordingly set aside. This Court has also taken note of the judgment dated 03.04.2018 passed in WP(C)/411/2017, where in an identical factual matrix, interference was deemed appropriate, and such interference was upheld by the Hon'ble Division Bench in its judgment dated 07.05.2018 passed in WA/316/2018.

28. Accordingly, it is directed that a fresh calculation has been made by taking the distance traversed as 343.2 KM and the balance amount be paid to the petitioner expeditiously and in any case within a period of 45 days from today.

29 Writ petition stands allowed in the manner as indicated above.

30. No order as to costs.

JUDGE

Comparing Assistant