High Court · 2012

t after about 20 to 22 years on completion of the contract work in question. Mr. Hussain, learned counsel appearing on behalf of the petitioners in both the cases submits that in a similar matter, this court had passed an order in M/S, M .K. Engineering, Builders and Contractors Pvt. Ltd. Vrs. Union of India and othe rs [WP(C) 3591 of 2004] and the petitioners will be happy if the similar order i s passed in the instant writ petitions also. Mr. Dey, learned Standing Counsel for the respondent-Railway submits that in vie w of the decision passed by the Apex Court in State of U.P. and others Vrs. Brid ge & Roof Co. (India) Ltd. (AIR 1996 SC 3515), these petitions are not maintaina ble. He further submits that when the contract between the parties is a contract in the realm of private law and not a statutory contract, then the parties in t he contract is governed by the provisions of the agreement relating to contract, provisions of Contract Act and also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such Contract or payment of disputed amount cannot be agitated, and could not have been agitated, in a writ petition, particularly when there is an arbitration cla use and admittedly regarding the work in question, there is an arbitration claus e so far as the agreements relating to the work in question are concerned. He fu rther submits that if any amount is wrongly withheld by the respondents, the rem edy of the respondents is to raise a dispute as provided by the contract or to a pproach the Civil Court as the case may be, according to law and similarly if th e respondents say that any over-payment has been made to the petitioners, its re medy is also the same. In support of his contentions, he has placed reliance upo n paragraphs 17 and 21 of the aforesaid case of State of U.P. and others Vrs. Br idge & Roof Co. (India) Ltd. (Supra), which are as follows :- (cid:28)17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of sub-clause (4) of Clause 70 of the Contract is again not a matter to be agitated in the writ petition. That is again a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is t o raise a dispute as provided by the contract or to approach the Civil Court, as the case may be, according to law. Similarly if the government says that any ov er-payment has been made to the respondent, its remedy also is the same. & & & & & & & & & & & & & & & &.

21. There is yet another substantial reason for not entertaining the writ petiti on. The contract in question contains a clause providing inter alia for settleme nt of disputes by reference to arbitration [Clause 67 of the Contract]. The Arbi trators can decide both questions of fact as well as question of law. When the c ontract itself provides for a mode of settlement of disputes arising from the co ntract, there is no reason why the parties should not follow and adopt that reme dy 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 ext raordinary jurisdiction under Article 226. The said Article was not meant to sup plant the existing remedies at law but only to supplement them in certain well-r ecognised situations. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was not seek ing to enforce any statutory right of theirs nor was it seeking to enforce any s tatutory obligation cast upon the appellants. Indeed, the very resort to Article 226 - whether for issuance of mandamus or any other writ, order or direction - was misconceived for the reasons mentioned supra. (cid:29) In response to the submission of Mr. Dey, learned Standing Counsel for the Railw ay, Mr. Hussain, learned counsel for the petitioners has placed reliance on a de cision of the Apex Court in Union of India and Others Vrs. Tantia Construction P rivate Limited, [(2011) 5 SCC 697], wherein the Apex Court noted that, (cid:28)even on the question of maintainability of the writ petition on account of the arbitrati on clause included in the agreement between the parties, it is now well establis hed that an alternative remedy is not an absolute bar to the invocation of the w rit jurisdiction of the High Court or the Supreme Court and that without exhaust ing such alternative remedy, a writ petition would not be maintainable. (cid:29) As Mr. Hussain, learned counsel for the petitioners submits that the matter can be disposed of passing a similar order like the order dated 25-07-2012 passed in WP(C) 3591 of 2004, it is not necessary for the court to decide the writ petiti ons on merit. There is also no doubt that mere an arbitration clause in the agreement itself w ould not be a bar to file a writ petition, but when there is an arbitration clau se, normally the court should not entertain the writ petition before exhausting such an alternative remedy, like arbitration by the parties. In the instant cases, admittedly there is an arbitration clause in the agreement and also the respondents are not making the payment, as sought for, due to non- availability of the documents. It is also admitted position that the writ petiti oners approached this court almost after 22 years on completion of the work in q uestion and on that ground itself, the writ petitions can be dismissed. However, as in a similar matter, this court directed the Railway Authorities to examine the claim of the petitioner of that case as regards the non-refund of th e security deposit money, it would be proper on the part of this court for the i nterest of justice to direct the present petitioners to file representations to the appropriate authority raising all their grievances with necessary documents within a period of one month from today and the Railway Authorities, respondent s herein, shall also examine the representations of the petitioners relating to their claims within a period of three months from the date of receipt of the rep resentations by a reasoned order. Accordingly, it is ordered. In view of the above, both the writ petitions stand disposed of. No order as to costs.