Himachal Pradesh High Court
Bali Ram Thakur vs The Union Of India And Another on 27 December, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 8073 of 2021
Reserved on: 28.09.2022
Decided on : 27.12.2022
Bali Ram Thakur ...Petitioner
Versus
The Union of India and another ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. P.S. Goverdhan, Advocate.
For the respondents: Mr. Balram Sharma, Deputy Solicitor
General of India.
Virender Singh, Judge.
Petitioner-Bali Ram Thakur, by virtue of the present writ petition, filed under Article 226 of the Constitution of India, has sought the indulgence of this Court to issue the appropriate writ, order or direction, claiming the following substantive reliefs:
1Whether Reporters of local papers may be allowed to see the judgment?::: Downloaded on - 29/12/2022 20:37:26 :::CIS 2
"(a) To issue necessary writ, order and direction to the respondents to refer the dispute arisen between the parties to the committee of the Arbitrator with further direction to follow the procedure as .
contemplated under Sections 325 to 330 of the Cantonment Act, 2006, in view of clauses 25 and 30 of agreement dated 1.8.2021 Annexure P-2.
(b) To issue necessary writ and order thereby quashing impugned order dated 14.12.2021, Annexure P-12, being wrong and illegal.
(c) To issue necessary writ, order or direction to the respondents thereby allowing the petitioner to collect the fee at the toll barriers as per the terms of the agreement and further to complete the tenure of the contract/agreement dated 1.8.2021 Annexure P-2, till its expiry i.e. 31.3.2022, and to restore the possession of the toll barrier in favour of the petitioner.
(d) To quash and set aside the notice dated 14.12.2021 Annexure P-13, notice dated 7.12.2021, Annexure P-15 and notice dated 27.11.2021, Annexure P-16, being wrong and illegal."
2. The petitioner has invoked the extra ordinary jurisdiction of this Court, on the ground, that the respondents had floated the tender, through e-auction, on 4th March, 2021, for collection of the toll, from the vehicles, entering in the limits of Cantonment Board Subathu, Tehsil and District Solan, H.P., for the period, commencing from the intervening night of 31st March, 2021 to 1st April, 2022.
3. The petitioner participated in the tender process and had been declared as successful bidder. Accordingly, the contract was awarded to him. The codal formalities were ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 3 completed and formal agreement (Annexure P-2), in this regard, was reduced into writing on 1st August, 2021.
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4. After commencement of the contractual period, according to the petitioner, the toll collection, for the first month, remained as normal, but, thereafter, due to the restrictions imposed by the Central Government, and, followed by the State Government, in the wake of COVID-19 pandemic, collection of the toll had drastically come down, resulting huge financial losses to the petitioner.
5. Despite suffering the huge losses, according to the petitioner, he was under contractual obligation to pay the tender amount to the respondents in a periodical manner, as per Clause 1 of the agreement, dated 1 st August, 2021.
Although, the petitioner was regular in payment of the installment in advance, but, due to the COVID-19 restrictions, he could not pay the said amount within time. Due to the imposition of the curfew, the petitioner represented to the respondents to consider the loss being suffered by him, but, the said representations were not considered by them.
6. Vide letter dated 10th May, 2021, the petitioner wrote a letter to respondent No. 2 to permit him to either close the ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 4 toll barriers or to compensate the losses. The said letter was also not responded by respondent No. 2. Thereafter, the .
petitioner has made various communications, vide letters, dated 3rd June, 2021, 8th August, 2021, 11th June, 2021, 21st June, 2021 and 27th July, 2021. Instead of acceding to the requests made by the petitioner, as referred to above, the respondents had kept on demanding the installments from the petitioner. Thereafter, he had again made representation on 4th August, 2021.
7. When no response was given by respondent No. 2, the petitioner was compelled to issue legal notice, dated 20 th September, 2021, requesting the respondents to settle the dispute by holding a meeting. The respondents were also requested to refer the matter for arbitration as per Clause 30 of the agreement, dated 1 st August, 2021. Instead of adhering to Clause 30, the respondents, according to the case set up by the petitioner, replied the notice on 30 th September, 2021, in which, the claim of the petitioner has been disputed and also refused to adhere to comply with Clause 30 of the agreement on the ground, that the claim of the petitioner, is not a matter, which could be referred to the arbitration.
::: Downloaded on - 29/12/2022 20:37:26 :::CIS 58. When respondent No. 2 had not adhered to Clauses 25 and 30 of the agreement, in stricto sensu, the petitioner .
filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996, seeking the interim relief, before the learned District Judge, Solan. The said petition was dismissed by the learned District Judge on 14 th December, 2021, on the ground of maintainability.
9. After the decision rendered by the learned District Judge on 14th December, 2021, respondent No. 2 had forcibly taken the possession of the toll collection barrier from the petitioner without serving any notice upon him. The said act is stated to have been done, by respondent No. 2, in violation of the terms and conditions of the agreement (Annexure P-2), as, instead of serving a notice upon the petitioner, they had issued notice, dated 14th December, 2021, through whats app message. The petitioner has informed this fact to the police vide Annexure P-14. Now, according to the petitioner, respondent No. 2 is threatening to re-auction the toll collection barrier to some third person.
10. It is the further case of the petitioner that he had already paid a sum of ₹ 68 lakh to the respondents till ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 6 November, 2021, which includes a sum of ₹ 14 lakh, as security deposit.
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11. Alleging against respondent No. 2, that the terms and conditions of the agreement, dated 1 st August, 2021, have not been adhered to, it has been pleaded that the respondents, instead of compensating the petitioner, had taken the stand that the matter is not liable to be referred to the Arbitrator.
As such, the said action of respondent No. 2 is stated to be in dereliction of the provisions of Articles 325, 326 and 327 of the Cantonment Act, 2006.
12. Similarly, the decision of the learned District Judge, in dismissing the application under Section 9 of the Arbitration and Conciliation act, is also stated to be in violation of Sections 325 to 330 of the Cantonment Act, 2006.
13. On all these submissions, the petitioner has sought the reliefs, as referred to above.
14. The writ petition has been contested by the respondents by taking the preliminary objections qua the maintainability of the writ petition and that the petitioner has not approached the Court with clean hands. The factual position regarding the auction of the barrier points of Subathu ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 7 Cantonment for collection of vehicle entry fees has not been disputed. It has also not been disputed that the contract for .
collecting the entry fees from the intervening night of 31 st March, 2021 to 1st April, 2022 had been awarded to the petitioner and possession of the barrier point was handed over to him and the terms and conditions were reduced into writing on 1st August 2021.
15. Elaborating r the terms and conditions of the agreement, it has been pleaded that the contract amount of ₹ 1,33,10,000/-, had to be paid, in six equal installments, as per the timeline, mentioned in the agreement, but, the petitioner could not comply with the said time schedule and stopped the payment of the installments with effect from 1 st August, 2021 to 15th August, 2021 on the plea to compensate the loss caused to him due to COVID-19 restrictions.
16. According to the stand taken by the respondents, assurance was given to him to compensate the loss, but, despite the said assurance, the petitioner has failed to deposit the installments, as per the agreement. When the petitioner failed to make the payment, as such, he was asked by respondent No. 2, vide letter, dated 30 th September, 2021, to ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 8 make payment of outstanding dues, failing which, the contract would be terminated.
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17. Aggrieved from the said notice, the arbitration case was filed by the petitioner before the District Judge. In the said proceedings, reply was filed and a committee was constituted by the Board to assess the actual compensation to be given to the contractor in terms of the provisions contained in Clause25 of the contract/agreement in compliance of Court's order, as communicated by the Cantonment Board Legal Advisor, vide his letter, dated 21st October, 2021.
18. The said committee, after hearing both the parties, furnished his report, dated 6th December, 2021, holding therein that the petitioner was entitled to get relief of 35 days, as calculated therein, during which, there was no vehicular traffic and the said amount has been assessed by the Committee, as ₹ 12,76,301/-. The said amount is stated to be in addition to the amount, which the petitioner had collected during those 35 days.
19. The District Judge, after going through the said report, had dismissed the said arbitration case on 14 th December, 2021. Thereafter, the physical possession of the ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 9 said barriers was taken on 14th December, 2021 at 6.30 p.m. However, in compliance of the order, dated 23 rd December, .
2021, passed by this Court, the physical possession was again handed over to the petitioner on 24 th December, 2021 at 3.40 p.m., but, the petitioner had willingly stopped the collection of the entry fee and again handed over the physical possession of the said barrier of the Cantonment Board on 18 th January, 2022 at 6.00 p.m.r
20. The said action, according to the respondents, was taken by the petitioner, in view of the letter dated 7 th January, 2022, issued by the Government of India, Ministry of Defence, whereby collection of vehicle entry fees has been stopped to be collected, by the Cantonment Boards, with immediate effect.
21. As regards the restrictions imposed by the Government in the wake of COVID-19 pandemic, it has been pleaded that the State Government of Himachal Pradesh declared Corona Curfew after more than a month with certain conditions on 5th May, 2021, where inter-state and intra-state movement of public transport vehicles was restricted only up to 50% and subject to SOP issued by the Transport Department, however, the operation of the public stage and ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 10 contract carriage was suspended only with effect from 10 th May, 2021, except essential services, vide order dated 8th May, .
2021. The said restrictions remained in force up to 14 th June, 2021. The said period of 35 days was duly considered by the Committee. As such, the compensation for the said period was given to the petitioner.
22. Reiterating their stand that the petitioner has failed to make the payment of the installments, as per the agreement, Annexure P-2, it is the further stand of the respondents that the question, with regard to the losses, which have been suffered by the petitioner, has duly been considered by the Subathu Cantonment Board. The meeting, in this regard, was convened, but, the petitioner did not turn up even after lifting of the COVID-19 restrictions.
23. The writ petition has further been contested by the respondents on the ground that even after lifting the corona curfew restrictions in the State, the petitioner continued earning huge commercial gain from the said barrier. It has not been disputed that the petitioner has not served legal notice, dated 20th September, 2021, but, the said notice was duly replied, vide letter, dated 30th September, 2021.
::: Downloaded on - 29/12/2022 20:37:26 :::CIS 1124. Reiterating that the grievances of the petitioner, if any, fall within the purview of Clauses 24 and 25 of the .
contract agreement (Annexure P-2), it is the stand of the respondents that the matter would be placed before the Board in its general/regular meeting.
25. So far as the prayer of the petitioner, qua referring the matter to the Arbitrator, is concerned, it has been opposed on the ground that as per Clauses 22, 24 and 25 of the contract agreement, the said prayer cannot be accepted.
26. Filing of the case, by the petitioner, before the learned District Judge, Solan, against the respondents, has not been disputed. The compensation, as per Clause 25 of the contract agreement, has already been given to the petitioner.
On the basis of the report submitted by the Committee, the benefit of ₹ 12,76,301/-, has already been given to the petitioner. The learned District Judge, Solan, has, thereafter, dismissed the petition, on 14th December, 2021.
27. The physical possession of the three barriers in Cantonment Board, Subathu, is stated to have been taken by the respondents, as per the procedure. The petitioner is required to deposit the remaining amount with the ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 12 respondent, as per the agreement, failing which, the stand has been taken by the respondents, to initiate the proceedings, .
under Section 324 of the Cantonment Act, 2006.
28. In compliance to the order passed by the learned District Judge, Solan, the respondents had constituted the Committee, to assess the actual losses suffered by the petitioner, which submitted its report, dated 6 th December, 2021. The petitioner was also member of the said Committee and signed the report, without any protest.
29. Highly relying upon Clause 30 of the contract agreement, it is the stand of the respondents that the stand taken by the petitioner, in the present petition, is not based upon the actual and factual position.
30. Placing reliance on the report of the Committee, dated 6th December, 2021, it is the stand of the respondents that they had already published the e-auction notice on 15 th December, 2021, for the contract, for the period 1 st January, 2022 to 31st March, 2022, as per Clause 4 of the contract agreement, dated 1st August, 2021, as the petitioner has failed to deposit the installments, despite repeated demands made by the Cantonment Board.
::: Downloaded on - 29/12/2022 20:37:26 :::CIS 1331. On all these submissions, a prayer has been made to dismiss the writ petition.
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32. To controvert the stand taken by the respondents, the petitioner has filed rejoinder, denying the stand, as taken by the respondents, in the reply.
33. In the rejoinder, the factum of constitution of the Committee has been denied. The petitioner, in the rejoinder, has also denied that the alleged Committee, so constituted by the Board, had assessed the losses suffered by the petitioner and filed its report, dated 6th December, 2021, in the Court of the learned District Judge, Solan. Moving a step further, the petitioner has taken the plea that no such report has been signed by him.
34. In view of the above factual position, it seems that the relationship of the parties, in the present writ petition, is governed by the contract agreement, which has been executed between the petitioner and the respondents on 1 st August, 2021. The said agreement was for the period from 1 st April, 2021 to 31st March, 2022. The schedule of payment of the contract fees has duly been mentioned in the contract agreement (Annexure P-2).
::: Downloaded on - 29/12/2022 20:37:26 :::CIS 1435. Thus, the dispute, which has arisen, in this case, has to be resolved, as per the provisions of this document.
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36. As per Clause 24 of the contract agreement, in case of a natural calamity or on account of corona curfew due to COVID-19 pandemic, if the Government is promulgating complete lock-down, as per the provisions of Disaster Management Rules, 2005, then, the request of the contractor would be placed before the Board, for consideration.
37. Clause 25 of the contract agreement provides that it was for the Board to constitute a Committee, which would give its report, regarding the grievances raised and to compensate the contractor.
38. In terms of Clause 30 of the contract agreement, if any dispute arises between the parties, which is within the purview of this agreement, then, the matter could be referred to the Arbitrator.
39. Clause 30 of the contract agreement, provides that beyond this agreement, if there is any dispute/claim/any question between the parties/any construction, commission or omission of any kind or any other matter of any kind, which may arise between the parties in any manner whatsoever, ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 15 Arbitrator i.e. an arbitral committee, can be constituted, under Section 327 of the Cantonment Act, 2006. The decision given .
by this arbitral committee will be the final decision and both the parties will be bound to accept the decision.
40. The petitioner, as per Clause 24 of the contract agreement, has moved the applications, on 6th May, 2021, as well as 3rd June, 2021, demanding the compensation, on account of the restrictions/lock-down, imposed by the State Government, due to the COVID-19 pandemic. Apart from this, he has moved the representations for extending the payment schedule of the installments, as per the contract agreement, Annexure P-2.
41. On 20th September, 2021, vide notice (Annexure P-8), a request has been made, to respondent No. 2, to call a meeting, within fifteen days, in pursuance of the letter, dated 9th May, 2021. The relevant portion of the notice, is reproduced, as under:
"That you are hereby required to settle the matter and call a meeting within 15 days from the receipt of this notice so that the request of my client as requested in the letter dated 09/05/2021 be considered as assured verbally earlier and take a sympathetic view for compensating the loss suffered by my client due to the operation of law and for no fault on his part besides take note of the threats of the officials and I do hereby require not to indulge in any illegal activity of forcible ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 16 possession of the toll collection as the same shall be defended at your cost and risks, in case of default on your part in that case the matter be referred to arbitration as per the terms of the agreement and in .
default this notice be considered as a demand notice for arbitration proceedings."
42. Although, this notice has been replied by the respondents on 30th September, 2021, wherein a stand has been taken, that the issue raised by the petitioner, falls under Clauses 22, 24 and 25 of the contract agreement, a specific stand has been taken by the respondents that the matter cannot be referred to the Arbitrator, in terms of Clause 30 of the contract agreement, as the dispute, so raised, by the petitioner, squarely falls within the purview of Clauses 22, 24 and 25 of the contract agreement (Annexure P-2).
43. Bare perusal of Clauses 24 and 25 of the contract agreement (Annexure P-2), which governs the relationship of the parties, clearly demonstrates that in case of natural calamities and the lock-down, on account of COVID-19 pandemic, the application moved by the contractor would be placed before the Board and the Board can constitute the Committee, which may compensate the contractor.
44. Clause 30 of the contract agreement does not cover the situation, which has been mentioned in Clause 24, as the ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 17 opening line of Clause 30 provides that 'any dispute out of the contract can be referred to the arbitration'.
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45. On the application of the contractor, a Committee was constituted, consisting of two ex-elected members of Subathu Cantt., representatives of respondents and the contractor himself. The committee, so constituted, had submitted its report on 6 th December, 2021, which was duly signed by the petitioner himself.
r The relevant portion of the report, is reproduced, as under:
"PROCEEDINGS OF MEETING HELD ON 06.12.2021 UNDER THE CHAIRMENSHIP OF .
RAVI SHARMA IN CONNECTION WITH ASSESSMENT OF LOSS CAUSED TO VEHICLE ENTRY FEE CONTRACTOR SH. BALI RAM DUE TO CORONA CURFEW DURING MAY AND JUNE 2021.
The following members attended the meeting.
1. Sh. Ravi Sharma, House No. 92, Subathu Cantt. Ex-Elected Member & presently President, Gugga Mari Comittee, Subathu.
2. Sh. Sunit Gill, House No. 496, Ex-Elected Member, Subathu Cantt.
3. Sh. Jatin Garg rept. Of CA, Cantt. Board, Subathu
4. Sh. Bali Ram vehicle entry fee contractor himself In continuation of earlier proceedings dated 23.11.2021 and 30.11.2021, the above committee members met today and discussed the matter at length. The contractor Sh. Bali Ram and Sh. Jatin ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 18 Garg representative of CA, Cantt. Board, Subathu have argued their sides in respect of settling the issue. The contractor has claimed 90 days rebate for the period of Corona Curfew, but he did not produce any .
authentic document in support of his claim except an written application dated 06.12.2021 addressed to CEO, Cantt. Board Subathu. This application was perused and discussed at length. The contractor failed to prove his claim of compensation for 90 days and other part of his application is not tenable.
xxx xxx xxx In view of the above documents the committee is of the view that the contractor is entitled to get relief only for 35 days as calculated above during which the vehicle traffic did not ply. Therefore the committee assessed the claim of rebate to the contractor Sh. Bali Ram, on the basis of total contract of Rs.
1,33,10,000/- which comes to Rs. 12,76,301/- + recovery whichever the contractor has collected from the toll barriers during 35 days."
46. When the petitioner has moved the application, which was considered by the respondents and constituted the Committee by associating the petitioner himself, then, it cannot lie in the mouth of the petitioner that he is entitled to get the matter referred to the arbitrator, as per Clause 30 of the contract agreement.
47. At the cost of repetition, the dispute, which has been raised by way of the applications, claiming compensation, on account of the losses suffered by him, due to the restrictions imposed in the wake of COVID-19 pandemic, clearly falls ::: Downloaded on - 29/12/2022 20:37:26 :::CIS 19 within Clause 25 of the contract agreement and the petitioner is unable to make out a case, which falls within the purview of .
Clause 30 of the contract agreement (Annexure P-2). Hence, he is not entitled for the relief, as claimed, in the present writ petition.
48. The petitioner has not only attended the meeting, dated 6th December, 2021, but he had also attended the earlier meetings, which were held on 23rd November, 2021, as well as on 30th November, 2021. This fact has not been disclosed by the writ petitioner, in his writ petition. Therefore, on this count also, he is not entitled to claim any relief from this Court.
49. Having glance of the above discussion, no ground for interference is made out, in the instant case. Accordingly, the writ petition is dismissed, so also the pending miscellaneous applications, if any.
( Tarlok Singh Chauhan ) Judge ( Virender Singh ) Judge December 27, 2022 ( rajni ) ::: Downloaded on - 29/12/2022 20:37:26 :::CIS