JKLR-Part(IV)                                      OWP 26/1999                                                 Back To Index

(2001) 1 J & K LAW REPORTER 464
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Mr. Justice N.A. Kakru, Judge

NARESH KUMAR GUPTA                                                                                                Petitioner
                                                                                 versus
UNION OF INDIA                                                                                                               Respondent

  OWP No. 26 / 1999, decided on  14.8.2000.

            Constitution of India Art. 226 - Petitioner bound by the terms of contract to refer dispute, if any, to the arbitrator - Approached High Court to invoke extra-ordinary powers of the Court under Art. 226 of the Constitution of India - Held : writ petition not maintainable.

            In essence, the rights and obligations of the parties are sought to be worked out in the light of the terms of the agreement, thus the controversy centres around the interpretation of the terms and conditions of the contract which are binding on the parties and as a matter of fact by medium of their pleadings they have reiterated such binding. In this back drop the petitioner is not entitled to invoke the jurisdiction of this Court under Art. 226 of the Constitution, for, such course will tantamount to saying good bye to the terms of the agreement which cannot be permitted in view of the candid admission of the parties, evidencing the fact that there relationship is governed by the agreement.                                                                                    [Para 3]  

Advocates who appeared in this case :
Mr. R.A. Jan, Advocate for the petitioner
None appears for the respondent

Cases referred : Chronological
1. State of U.P. v. Bridge and Roof Co. (India) Ltd. AIR 1996 SC 3515
2. Asgar S. Patel v. Union of India AIR SCW (25 / 2000)

JUDGMENT AND ORDER

            The petitioner-contractor entered into  a  works  contract  with  the respondents  for  construction   of  buildings  to  provide  accommodation for married GCOs/HAVs / OR at Baramulla vide works  contract  No. CESZ-14 / 91-92, besides, accommodation  for MED Regt.   at Pattan vide Contract SESZ / 07 / 93-94. He claims  to  have  completed  these  works  on  06/05/1997  and  06/01/1998 respectively. To substantiate the contention, reliance is placed on the certificate issued by respondent No. 3 vide No. 8101 / CESZ - 14 / 91-92 / 992 / EB dated         06/05/1997  which is said to have been issued in terms of condition 49 of the General conditions of the contract enshrined in IAFW-2249.  Relying on the certificate it is contended that the respondents are bound to make the payment to the petitioner within the period specified under condition 66.

2.          The   respondents  have  vehemently opposed the maintainability of the writ petition on the ground that no fundamental or statutory   right  of  the petitioner has   been  infringed. They have contended further that the petitioner has failed to complete the work within the stipulated period and has neither rectified the defects nor has he returned the unused store items and breach of contractual obligations is ascribed to  the petitioner in so many words. In this background it is canvassed that the petitioner should have sought the settlement of the dispute through arbitration under clause 70 of the IAFW-2249 which is extracted and reproduced for facility of reference :

“70-Arbitration:  All disputes between   the  parties  to  the contract  (other than for which the decision of CWE or any other person is by the contract expressed to be final  and  binding)  shall  after  the  written notice by  either party to the other of them be referred to sole arbitration of an Engineer officer to be appointed by  the  Authority  mentioned  in  the tender document.”

3.          The language of clause makes it very clear that in the event of dispute arising out of contract, it is referable to the arbitrator. Whether a dispute has arisen out of the contract, the pleadings of the parties assume significance and a cursory glance on the same unfolds that the petitioner claims relief on the basis of recitals of the  agreement whereas the respondents deny his entitlement on the strength of the very terms and conditions of the agreement pressed into a service by the petitioner. It is appropriate to notice that the case on hand does not represent a situation where petitioner relies on one set of conditions and the respondents on a different one but fact of the matter is that both the parties rely upon a set of conditions contained in IAFW - 2249. In essence, the rights and obligations of the parties are sought to be worked out in the light of the terms of the agreement, thus the controversy centres   around the interpretation of the terms and conditions of the contract which are binding on the parties and as a matter of fact by medium of their pleadings they  have  reiterated  such binding. In this backdrop the petitioner is not entitled to invoke the jurisdiction of this court under article 226 of the Constitution, for, such course will tantamount to saying good bye to the terms of the agreement which cannot  be  permitted  in  view of the candid admission of the parties, evidencing the fact that their relationship is governed by the agreement.

4.          Here it is advantageous to refer to the judicial pronouncement of the Apex Court in State of U.P.  v. Bridge & Roof Co. (India) Ltd.  reported in AIR 1996 SC 3515 at 3520. In para (21), it was observed :

“ 21.  There  is  yet  another  substantial  reason  for  not entertaining the  writ  petition. The contract in question contain a clause providing              inter-alia for settlement of disputes by reference to arbitration ( Clause 67  of  the  Contract). The Arbitrators can decide both questions of fact as well as question 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 said Article wasn’t  meant to supplant the existing remedies at law but only to supplement them in certain well recognised 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 seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory 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.”

5.          In yet another case, recent in point of time, the apex court in Asgar S. Patel v.Union of India reported in AIR Supreme Court Weekly ( 25 / 2000 ) held :

“When the parties enter into a clear, unambiguous and express contract   creating mutual rights and obligations, the parties are bound by it and the extraordinary jurisdiction of the High Court under Article 226 of the Constitution which is of discretionary nature cannot be allowed to  be utilized for enforcing an obligation in departure from the terms of the agreement.”

6.          Examining the matter in the light of  judgments of the Apex Court (supra), the writ petition is not maintainable, accordingly, it is dismissed.

            No order as to costs.

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