IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.21886 OF 2019 (GM-RES) BETWEEN:
M/S KMA CATERERS SITUATED AT 20 ROBERTSON ROAD BANGALORE 560005 REPRESENTED BY ITS PARTNER T S KHADEER AHMED (BY MR. MOHAMMED TAHIR, ADV. FOR MR. MOHAMMED, ADV.) AND:
1. THE UNION OF INDIA THE MINISTRY OF RAILWAYS RAIL BHAVAN NEW DELHI 110001 REP BY ITS SECRETARY 2. THE CHAIRMAN RAILWAY BOARD THE MINISTRY OF RAILWAYS RAIL BHAVAN NEW DELHI 110001 3. INDIAN RAILWAY CATERING AND TOURISM CORPORATION SITUATED AT 11 12TH FLOOR STATESMAN HOUSE BUILDING BARAKHAMBA ROAD NEW DELHI 110001 REP BY ITS MANAGING DIRECTOR 4. INDIAN RAILWAY CATERING AND TOURSIM CORPORATION REGIONAL OFFICE SITUATED AT 2/2 DR. RAJKUMAR ROAD 4TH BLOCK RAJAJINAGAR BANGALORE 560010 REP BY ITS REGIONAL MANAGER … PETITIONER 5. THE CHIEF COMMERCIAL MANAGER SOUTH WESTERN RAILWAY ZONAL HEAD QUARTER 2ND FLOOR GADAG ROAD HUBLI 580020 … RESPONDENTS (BY MR. N S SANJAY GOWDA, ADV. FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS PENDING ON THE FILE OF RESPONDENTS PERTAINING TO KARNATAKA EXPRESS AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Mohammed Tahir A., learned counsel for the petitioner.
Mr.Sanjay Gowda N.S., learned counsel for the respondent.
In this petition under Articles 226 & 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of impugned notice dated 15.05.2019 issued by respondent No.3 stating that tender for providing catering services in Karnataka Express Train shall be opened on 17.05.2019 and further action in the matter shall be taken. The petitioner also seeks a writ of prohibition restraining the respondents not to hand over the pantry car since the matter is pending adjudication before the Arbitrator. The petitioner also seeks a direction to the respondents to hand over pantry car of Karnataka Express Train to the petitioner to provide provisional onboard catering service with enhanced licence fee.
2. Facts giving rise to filing of the petition briefly stated are that IRCTC had called for a tender for operation and management of onboard catering services in Karnataka Express train for a period of ten years wherein the petitioner had participated and was declared a successful tenderer. After completion of initial term of five years, IRCTC had asked the willingness of the petitioner to renew the licence for remaining period. The petitioner gave consent, however, IRCTC renewed the licence only for 15 months and imposed the condition to set up the base kitchen. It was the case of the petitioner that the terms and conditions of the agreement did not require setting up of base kitchen . However, IRCTC terminated the licence before contractual period.
3. Being aggrieved, the petitioner preferred W.P.No.14725/2008, which was disposed of with a direction to the respondents to consider the representation for renewal of the licence. However, the licence of the petitioner was terminated on 16.10.2008, which was subject matter of challenge in W.P.No.412/2009, which was quashed by this court. The IRCTC initiated steps for award of contract in favour of third parties. Thereupon the petitioner filed W.P.No.16494/2015, in which an interim order was passed by which respondent was restrained from finalizing the tender. In W.P.No.26701/2016 also an interim order was passed by which respondents were restrained from precipitating the matter awarding grant of contract to any third party. However, despite the aforesaid interim order, again IRCTC called impugned quotation to award onboard licence for catering services. The aforesaid action of the respondents was challenged in W.P.No.41573/2016, in which an impugned order was granted.
4. The aforesaid writ petition was decided by this court by an order dated 10.04.2019, by which Mr.Justice Ashok B Hinchigiri a Former Judge of this Court was appointed as sole Arbitrator to adjudicate the dispute. However, the respondents issued the notice, by which it was provided that the tender shall be opened for further course of action on 17.05.2019. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that the action of the Corporation is unjust and illegal and the Corporation should take an action for allotment of the contract in question for onboard catering services after conclusion of the arbitration proceedings. On the other hand, learned counsel for the respondents submitted that on account of the interim order, the respondents are unable to proceed with the tender in question and are suffering a loss approximately of Rs.25 Lakhs per day. It is further submitted that the respondents are unable to provide catering services to the passengers in the Karnataka Express Train on account of the interim order passed by this Court. It is further submitted that after disposal of the writ petition on 10.04.2019 preferred by the petitioner, the interim order has ceased to remain in operation and therefore, the respondents are entitled to award the contract for catering services for a limited period till the proceeding are concluded before the Arbitrator.
6. I have considered the submissions made by learned counsel for the parties. It is trite law that no person should suffer for the act of the Court. The respondents could not finalize the contract for catering services on account of the interim order passed in W.P.No.41573/2016. The aforesaid interim order has ceased to remain in force as the writ petition itself has been decided finally by this court on 10.04.2019. Therefore, the respondents cannot be restrained from acting upon the tender, which they had issued and were unable to act upon on account of the interim order passed by this court. It is also pertinent to note that public interest requires that catering services should be provided to the passengers traveling in the train and the public exchequer should not suffer. It Is stated on behalf of the respondents that the respondents are suffering a loss of Rs.25 Lakhs per day. Therefore, I do not find any merit in the contention of the petitioner that the respondents be restrained from finalizing the contract in question. An Arbitrator has already been appointed. It is always open for the petitioner to file an application before the Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996 to seek an interim measure.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS