Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20483 of 2013 ====================================================== Bansi Lal Singh, S/o Late Jalim Singh, C/o Veena Auto Corporation, Resident of Village Kama Bigha, Sahpur Bye Pass Chouk, NH-2 G.T. Road, Aurangabad, P.S.-Town, P.O. Kunda, Dist. Aurangabad, 824101 (Bihar). .... .... Petitioner Versus 1. The State Of Bihar through the Commissioner of Excise, Govt. of Bihar, Patna. 2. The Bihar State Beverages Corporation Ltd., Vidyut Bhawan-II, 1st Floor, Patna. 3. The General Manager, (H.R.S. Admi.), Bihar State Beverages Corporation Ltd., Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Ms. Anita Kumari, Adv. For the Respondent/s : Mr. Lalit Kishore (P.A.A.G.) ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 07-10-2013 Heard learned counsel for the parties as with regard to the following reliefs prayed in this writ application:- “1. ---- for quashing the letter no. 3780. Dated 18.09.2013, issued by the General Manager (H.R. and Admi.) Bihar State Beverages Corporation L.t.d, Patna where by and where under the General Manager (H.R. and Admi. B.S.B.C.L.) Respondent No.-3 has given notice bearing No.- 3780. Dated 18.09.2013. stating therein that petitioner Godown which was leased out on 02.05.2011. will be vacated by 30.09.2013. which violates the leased Agreement dated 02.05.2011 while the said Godown was leased out for a period in between 15.05.2011 to 14.05.2013 and as per leased agreement it is mandatory for the lessee that for vacating the Godown three months prior notice is required, obviously the lessee has not given any
Legal Reasoning
Patna High Court CWJC No.20483 of 2013 (2) dt.07-10-2013 2 prior notice to the petitioner so, the aforesaid notice may be quashed.”
Legal Reasoning
Learned counsel for the petitioner has submitted that the impugned order passed by the Managing Director of Bihar State Beverage Corporation Limited, Patna with regard to vacating the godown of the petitioner with effect from 30.9.2013 is bad because as per the lease agreement dated 2.5.2011 executed between the petitioner and the Corporation, being the lessee, was under obligation to give three months notice but the impugned order has been passed without following such provision of the lease agreement. Learned counsel for the Corporation, on the other hand, has submitted that the lease agreement was only for a period of two years commencing from 15.5.2011 to 14.5.2013 and the Corporation, having not opted to recall the lease, had correctly given the notice to vacate the premises being the occupant of the petitioner. In the considered opinion of this Court, this writ application will not be maintainable for two reasons. Firstly, whatever provisions have been made in the lease is only by way of non-statutory agreement and thus no right would flow out of such a lease for maintaining this writ petition as was clearly held in the case of M/s Radhakrishna Agarwal & Ors. Vs. State of Bihar & Ors. Patna High Court CWJC No.20483 of 2013 (2) dt.07-10-2013 3 reported in AIR 1977 SC 1496. Secondly, the lease itself provides a provision for resolution of dispute wherein under Clause-15, following provision has been made:- “15. That it is hereby agreed that if at any time any dispute, doubt or question shall arise between the lessor and “Lessee” touching the construction, meaning or effect of this deed or any clause thereof or their respective rights and liabilities hereunder the same shall referred to Managing Director of “Lessee”, who shall be sole arbitrator and whose decision shall be final and binding on the parties. The provision of arbitration and Conciliation Act, 1996 shall apply.” It is also well settled that if there be a provision for arbitration, a writ for resolution of such dispute cannot be maintained in view of the law laid down by the Apex Court in series of cases in the case of M/s Bisra Lime Stone Company Ltd. & Anr. Vs. Orissa State Electricity Board & Anr. reported in AIR 1976 SC 127, in the case of Smt. Rukmanibai Gupta Vs. Collector, Jabalpur & Ors. reported in AIR 1980 (4) SCC 556 and in the case of Tata Finance Ltd. Vs. Ajaya Kumar Biswal & Ors. reported in 2000 (9) SCC 238 including in the case of Indian Aluminium Company Vs. Kerala State Electricity Board reported in 1975 SC 1967. This aspect of the matter has also been gone into by the Division Bench of this Court dated 12.1.2011 in LPA No. 762 Patna High Court CWJC No.20483 of 2013 (2) dt.07-10-2013 4 of 2009 (The State of Bihar & Ors. Vs. M/s Ram Barai Singh and Company) wherein it was held as follows:- “---- The refusal of writ jurisdiction under Article 226 of the Constitution in a case where the parties are bound by an earlier agreement providing for arbitration by now is a well settled law. Reference in this connection may be made to the judgment of Apex Court in the case of State of U.P. v. Bridge & Roof Co. (India) Ltd. reported in (1996) 6 SCC 22 wherein the Apex Court had held as follows:- “Further, the contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration. The arbitrators can decide both questions of fact as well as questions of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extraordinary jurisdiction of the High Court under Article 226. The existence of an effective alternative remedy- in this case, provided in the contract itself- is a good ground for the court to decline to exercise its extraordinary jurisdiction under Article 226.” The same view in fact has been reiterated by the Apex Court even in the case of ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd and others reported in (2004) 3 SCC 553, where it had been held as follows:- “It is well known that if the parties to a dispute had agreed to settle their dispute by arbitration and if there is an agreement in that Patna High Court CWJC No.20483 of 2013 (2) dt.07-10-2013 5 regard, the courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration, unless of course both the parties to the dispute agree on another mode of dispute resolution.” ” As has been noted above, the lease agreement between the Corporation and the petitioner was only for a period of two years i.e. from 15.5.2011 to 14.5.13 and there was only clause for extension of period of agreement with mutual consent of the parties and, thus, if the Corporation, on expiry of the period of two years, did not opt for extension, the petitioner cannot expect giving of three months’ notice. Thus, Clause-13 and 14 of the agreement does not actually envisage of three months notice on expiry of a period of lease. Be that as it may, this Court would not like to close the door of the petitioner and if the petitioner, therefore, would invoke its aforesaid arbitration clause, it will be open for the arbitrator to decide the dispute strictly in accordance with the terms and conditions of the agreement as well as in accordance with law. With the aforementioned observation and direction,
Decision
this application is disposed of. Rishi/- (Mihir Kumar Jha, J)