Gauhati High Court
P. Jibon Singh vs State Of Manipur And Ors. on 30 August, 2007
Equivalent citations: 2008(1)GLT871
Author: U.B. Saha
Bench: U.B. Saha
JUDGMENT U.B. Saha, J.
1. The present appeal is directed against the order dated 30.7.2007 passed by the learned Single Judge of this Court in WP(C) No. 420 of 2005 whereby and whereunder the learned Single Judge dismissed the writ petition filed by the present appellant as not maintainable. The said writ petition was filed by the appellant claiming the outstanding due of Rs. 7,43.093/-+ Rs. 74,407/- i.e., in total Rs. 8,17,500/-, which he is entitled, according to him out of a contract between the petitioner and the Executive Engineer, National High Ways Division No. 1, Public Works Department, Government of Manipur.
2. We have heard Mr. S. Rupachandra, learned Counsel appearing for the appellant/writ petitioner as well as Mr. S. Suresh, learned Counsel appearing for the respondents No. 1 and 2 and Mr. N. Ibotombi, learned Counsel appearing for the respondents No. 3 and 4 at this admission stage, who also raises the question of maintainability of the writ petition and support the judgment of the learned Single Judge from which present appeal. We have gone through the order of the learned Single judge dated 30.7.2007 as well as the grounds taken in the appeal for interfering with the order learned Single Judge.
3. It appears from the impugned order of the learned Single Judge that the learned Single Judge had given a long hearing on the maintainability of the writ petition and decided the matter after considering the decisions of the Division Bench of this Court given in the case of State of Manipur and Ors. v. Moirangthem Chaoba Singh and Ors. reported in 2006 (1) GLT19 wherein the Division Bench of this Court also considered the case of the State of U.P. v. Bridge & Roof Co. reported in (1996) 6 SCC along with other cases. In the State of U.P. v. Bridge & Roof Co. (supra), the Hon'ble Apex Court, particularly, Hon'ble Mr. Justice Jeevan Reddy (the then) specifically observed that:
Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the contract Act or, may be, also be certain provisions of the Sale of Goods Act, Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioner's bill (s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.
4. In the said Bridge & Roof Co. (supra), their Lordships also observed that it is well known that if the parties to a dispute had agreed to settled their dispute by arbitration and if there is an agreement in that regard, the courts will not permit recourse to any other remedy without invoking by way of arbitration, unless of course both the parties to the dispute agree on another mode of dispute resolution. Relying upon the aforesaid case of Bridge & Roof Co. (supra), the Division Bench of this Court held that the parties having voluntarily entered into a non- statutory contract and having agreed to settle disputes, if any arising between there by arbitration cannot have recourse to any other remedy without invoking the remedy by way of arbitration as public law remedy is not available in such a situation even if one of the parties to the contract is State or its instrumentality. In Moirangthem Chaoba Singh and Ors. (supra), their Lordships after considering the case of ABL International Ltd. v. Exports Credit Guarantee Corporation of India Ltd. reported in (2004) 4 SCC 553 came to a conclusion that where the clause of arbitration is available, in that case no writ petition will lie in a contractual matter by recourse of public remedy under Article 226 of the Constitution of India.
5. Mr. Rupachandra, learned Counsel for the appellant, in support of this writ appeal refers the decision of Hon'ble Apex Court given in the case of Nobel Resources Ltd. v. State of Orissa reported in AIR 2007 SC 119 and the decision of the Division Bench of this Court in the case of Principal Secretary to the Govt. of Nagaland v. Dimapur Contractors & Suppliers Union and Anr. reported in 2007 (2) GLT 260.
6. We have gone through the case of Nobel Resources Ltd. v. State of Orissa (supra). There is no quarrel as regards the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid case as in the said case, the Hon'ble Apex Court observed that it is trite that if an action on the part of the State is violative the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the constructual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the court's scrutiny would be more intrusive, in the latter the court may not ordinarily exercise the discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter and also observed in paragraph No. 45 that although the approach of the High Court was not entirely correct, its ultimate decision to refuse to exercise its discretionary jurisdiction cannot be faulted with.
7. Similarly, in the case of Principal Secretary to the Govt. of Nagaland v. Dimapur Contractors & Suppliers Union and Anr. (supra) the Division Bench of this Court also observed in paragraph 18 of the said judgment that if no provision for arbitration of such a claim has been made in the contract agreement, the remedy of the person, who demands payment, lies, ordinarily, in instituting suit in civil courts and not in making application, under Article 226, seeking enforcement of the State's obligation to pay its dues and in paragraph No. 23 of the said judgment, this Court held that existence of an alternative remedy is not an absolute bar to the jurisdiction of the court under Article 226, but is always a matter of exercise of discretion and remains, therefore, in the realm of prudence. What is, however, of great relevance to note is that though a disputed question of fact is not normally entertained by a High Court in its writ jurisdiction, it will not, as a corollary, follow that if there is no disputed question of fact, remedy under Article 226 would be available and allowed the appeal preferred by the Secretary of Govt. of Nagaland challenging the order of the learned Single Judge allowing the relief to the petitioners in that case, In the aforesaid case of Principal Secretary to the Govt. of Nagaland v. Dimapur Contractors & Suppliers Union and Anr. (supra), the Division Bench also did not specifically state that when there is arbitration clause, then also the court is bound to exercise its writ jurisdiction to decide the contractual dispute between the parties.
8. Admittedly in both the aforesaid case of Dimapur Contractors & Suppliers Union and Anr. (supra) and Nobel Resources Ltd. v. State of Orissa, the learned State Counsel appearing in both the cases never raised their voice to the fact that there is arbitration clause in the agreement for which the writ petition is not maintainable, which is raised in the case in hand. Hence, according to us, the aforesaid two cases do not cover, the question involved in the present case, whereas the case of Moirangthem Chaoba Singh and Ors.(supra) squarely covers the case in hand. According to us, the learned Single Judge rightly dismissed the writ petition on the question of maintainability. Accordingly, we dismiss the appeal. No order as to costs.