TMI Blog2011 (7) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner as to how it had been running trains in violation of the provisions of the agreement on the NCR route to which the petitioner replied vide letter dated 28.6.2010 explaining that the trains on the NCR route were of the other private operators and they were using the terminal facilities of the petitioner at Kalamboli. The respondent on 3.5.11 issued an order banning movement of other container train operators from Kalamboli unless co-use permission was granted by them and by a subsequent order dated 3.6.2011, the respondent held the petitioner breaching the terms of agreement by violating Article 4.1.1 of the said agreement and directed the petitioner to deposit a sum of ₹ 40 crores with the respondent within 60 days or otherwise the agreement to be terminated by the respondents. Feeling aggrieved with the same, the petitioner has preferred the present petition. 3. Mr. P.V. Kapoor, learned Senior Advocate appearing for the petitioner vehemently contended that in blatant violation of the principles of natural justice the respondents have passed the order dated 3.6.2011, whereby they have directed the petitioner to remit a sum of ₹ 40 crores with FA CAO, Norther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Apex Court in Union of India Ors. Vs. Tantia Construction Pvt. Ltd (2011 (4) SCALE 745), ABL International Ltd. Anr. Vs. Export Credit Guarantee Corporation of India Ltd. Ors. (2004) 3 SCC 553. 5. Mr. R.V. Sinha, learned counsel for the respondent strongly opposes the present petition on the ground of maintainability. Counsel submits that a show cause notice was duly served upon the petitioner vide notice dated 21.6.2010 and the same was also replied to by the petitioner vide its reply dated 28.6.2010 but since the petitioner continued to violate the terms of the Concession Agreement by permitting the train operators to use their rail terminal, therefore, the decision taken by the respondent vide their letter dated 3.6.2011 to terminate the licence agreement of the petitioner cannot be called either illegal or in violation of principles of natural justice. Counsel also submits that the petitioner at best can invoke the arbitration clause than invoking the plenary powers of the writ Court. 6. I have heard learned counsel for the parties at length at the preliminary stage. 7. So far the argument of the counsel for the petitioner with regard to alleged violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was authorized to permit the other private container train operators to use the private terminal of the petitioner at Kalamboi for loading and unloading their trains or any specific permission was required for permitting the PCTOs from the respondents in terms of the concession Agreement. Both the parties have also raised serious dispute with regard to the interpretation of Article 4.1.1 of the concession agreement which article as per the counsel for the petitioner permitted the petitioner to allow the PCTOs to operate their containers from their private terminal without seeking any prior approval from the respondent. On the other hand counsel for the respondent has taken a stand that the said article no where gives any authority to the petitioner to allow the other PCTOs to operate their containers from the private terminal of the petitioner. Another and equally important question is as to under what circumstance the name of the petitioner in the railway receipts was being mentioned as consigner even in respect of those private trains which belonged to the other PCTOs is again a debatable point and cannot be adjudicated in exercise of writ jurisdiction of this court under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether there was a breach may, however, be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract, is seriously disputed, the High Court cannot assume that there was a valid contract and on that basis, examine the validity of the administrative action. 10. The Supreme Court in Pimpri Chinchwad Municipal Corporation Ors. Vs. Gayatri Construction Company Anr. (2008) 8 SCC 172 after drawing a distinction between the statutory contracts and the private contracts awarded by the statutory bodies and after placing reliance on the various earlier judgments of the Supreme Court held in following paras as under: 7. In matters relating to maintainability of writ petitions in contractual matters there are catena of decisions dealing with the issue. 8. In National Highways Authority of India v. Ganga Enterprises : AIR2003SC3823 , it was inter alia held as follows: 6. The respondent then filed a writ petition in the High Court for refund of the amount. On the pleadings before it, the High Court raised two questions viz.: (a) whether the forfeiture of security deposit is without authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature. 11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of the Deputy Commissioner made under the proviso to Section 8D(1). 16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, maybe, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioner's bill(s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer. 12. At para 11 of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other statutory requirements of Section43A(2). Opening and maintaining of an escrow account or an escrow agreement are not the statutory requirements and, therefore, merely because PPAs contemplate maintaining escrow accounts that obligation cannot be regarded as statutory. 13. Therefore, the High Court ought not to have entertained the writ petition. Additionally, it appears that by order dated 17.1.2007 interim stay of the impugned order was granted and was continued by order dated 12.2.2007. It is pointed out by learned Counsel for the appellants that since the order of the High Court was stayed and there was urgency in the matter fresh tenders were called for. Three persons submitted the bids and the work has already been allotted and a considerable portion of the work has already been completed. In view of aforesaid, we set aside the impugned order of the High Court and direct dismissal of the writ petition. It is however open to the respondents-writ petitioners to seek such remedy, if so advised, as is available in law. We do not express any opinion in that regard. 11. Applying the aforesaid principles to the facts of the present case, it would be quite evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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