BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/11/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.No.8801 of 2005 V.Essakkiammal ... Petitioner Vs 1.The Senior Divisional Commercial Manager, Southern Railway, Divisional Office, Commercial Section, Madurai-16. 2.The Station Master, Southern Railway, Tirunelveli. 3.The Senior Section Engineer (Works), Southern Railway, Tirunelveli. 4.The Deputy Commercial Inspector, Southern Railway, Tirunelveli. 5.The Divisional Financial Manager, Southern Railway, Madurai. 6.The Chief Commercial Manager, Southern Railway, Chennai-3. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue 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 and (Prayer in the Supplementary affidavit:) to issue suitable directions to the respondents to cancel the allotment and refund the amount remitted by the petitioner with interest. !For Petitioner ... Mr.K.Srinivasan ^For Respondents ... Mr.S.Manohar :ORDER
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. Heard both sides in entirety.
7. 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?
8. The learned Counsel for both sides reiterated their stand as found set
out in the respective pleadings of the parties.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. In the result, this petition is disposed of. No costs.
rsb
To
1.The Senior Divisional Commercial Manager,
Southern Railway, Divisional Office,
Commercial Section, Madurai-16.
2.The Station Master,
Southern Railway, Tirunelveli.
3.The Senior Section Engineer (Works),
Southern Railway, Tirunelveli.
4.The Deputy Commercial Inspector,
Southern Railway, Tirunelveli.
5.The Divisional Financial Manager,
Southern Railway, Madurai.
6.The Chief Commercial Manager,
Southern Railway, Chennai-3.