Allahabad High Court
M/S Veena Transport Company Throu Its ... vs Food Corporation Of India Throu Its ... on 4 October, 2017
Bench: Devendra Kumar Arora, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 2 Case :- MISC. BENCH No. - 6545 of 2015 Petitioner :- M/S Veena Transport Company Throu Its Proprietor Respondent :- Food Corporation Of India Throu Its Chairman N.Delhi & Ors. Counsel for Petitioner :- Dipak Seth,Ratnesh Chandra Counsel for Respondent :- C.S.C.,Dileep Kumar Singh Chauha,Shikhar Anand,Vina Sinha Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Rajnish Kumar,J.
M/S Veena Transport Company, a proprietorship firm, engaged in the business of handling and transport, has filed the instant writ petition against the order dated 8.7.2015 passed by the Appellate Authority (Grievance Redressal Committee) whereby the appeal of the petitioner has been rejected. The petitioner has also assailed the order dated 2.4.2014 passed by the Area Manager, Food Corporation of India, Faizabad whereby the representation of the petitioner has been rejected.
According to learned Counsel for the petitioner, M/s Veena Transport Company was awarded the contract for appointment of handling and transport contractors at Railhead, Faizabad at the offered tender rate of 145% ASOR ( Above Schedule of Rate) vide letter dated 28.12.2011. The said contract was for a period of two years. The job of the petitioner as a contractor was that he would unload the material/goods from the wagons of railway sheds to the go-down of the Food Corporation of India. It is said that despite the specific conditions of penalty by the railway department, the opposite parties have failed to provide adequate labour at their go-downs as a result of which the trucks at their depot could not be unloaded timely rather they took around 3-4 days to unload the vehicle which resulted in heavy demurrage and warfage.
Elaborating his submission, learned Counsel for the petitioner submitted that due to fault of opposite parties heavy warfage and demurrage was imposed upon the petitioner, which action was assailed in Writ Petition No. 95210 (MB) of 2013. The said writ petition was dismissed on 4.4.2014 on the ground of alternative remedy before the Dispute Redressal Committee. Later on, the representation of the petitioner was rejected by the Area Manager vide order dated 2.4.2014 and appeal was also dismissed vide order dated 8.7.2015.
Learned counsel for the petitioner has vehemently argued that while deciding the appeal, the appellate authority has ignored the direction issued by the district administration in which the official of the Food Corporation of India were also members. It has been clarified that in the meeting dated 20.6.2012 under the chairmanship of the District Magistrate- Faizabad, it was specifically directed that the trucks loaded with goods or unloaded trucks could be diverted through bypass and those trucks would not be allowed entry in the main city. Having done so, the agreement was not only binding upon the common public, but also upon the petitioner and F.C.I., who were the signatories to such an arrangement. It has also been assailed that the petitioner has provided more than double the trucks as directed by the Manager depot but still it has been wrongly observed in the impugned order that there was inadequate supply of numbers of trucks and the liability of demurrage and warfage charges amounting to Rs. 96,83,510/- upon the petitioner has wrongly been fastened.
It has been vehemently argued that illegal deduction under the head of demurrage or warfage charges would cause serious prejudice and colossal loss to the petitioner.
Refuting the allegations of the petitioner, a preliminary objections has been raised by the Counsel for the respondents that the instant writ petition arises out of the contractual dispute between the petitioner and the Corporation as such the same is not maintainable. In response to a Handling Transport Contract Tender Form floated by the Corporation, the petitioner has applied for the tender and was finally awarded the contract in question. Clause XVIII of the tender conditions provides about the redressal of disputes by the Dispute/Grievance Redressal Committee. In the event if any disputes remain thereafter, the same will be settled in the court of law having competent jurisdiction. He further pointed out that a bare perusal of the tender document further shows that the proprietor of petitioner had duly consented for the same as his signatures are also apparent upon the tender condition in question.
On account of above, since the petitioner has got an efficacious alternative remedy of filing a civil suit before the competent civil court, for which he had also agreed in the tender document; the present writ petition is liable to be dismissed on this ground. To strengthen his arguments, learned Counsel for the respondents have relied upon the Apex Court decisions rendered in M/s Radhakrishna Agarwal and others Versus State of Bihar and others (1977)3 SCC 457 and Food Corporation of India and others Versus Harmesh Chand; (2006)7 SCC 654..
In reply to the preliminary objection regarding maintainability of the writ petition, the Counsel for the petitioner has argued that in view of the decisions rendered in State of Kerala and Ors. V/s M.K. Jose in Civil Appeal No.6086 of 2015 and JSW Infrastructure Limited and anr. V/s Kakinada Seaports Limited and Ors; (2017) 4 SCC 170, the writ petition is maintainable against the contractual dispute and this Court has every jurisdiction to look into the matter even if there are disputed questions of fact.
There is no dispute to the fact that the petitioner has entered into an agreement with the Food Corporation of India for handling and transport of food-grains which comes by the Railway, stored in the Railway Mall go-downs and thereafter being transported to the Depots of Food Corporation of India. Clause XVIII of the tender document contains the heading Laws Governing the Contracts and Dispute Resolution and it reads as under:-
(a) The contract will be governed by the laws of India for the time being in force.
(b) In case of any dispute arising out of and touching upon the contract, the same will be first referred to the Dispute/Grievance Redressal Committee constituted and functioning at the Zonal Office of the Corporation, with a view to settle the disputes. If any disputes remain thereafter, the same will be settled in the Court of Law having competent jurisdiction."
A bare reading of the aforesaid clause unequivocally establishes that in the event of a dispute surviving after decision of the Dispute/Grievance Redressal Committee, the aggrieved party has to approach the competent court of law having jurisdiction into the matter, which in the present circumstances, would mean the competent Civil Court having jurisdiction into the matter. In addition to the aforesaid language contained in the tender document, it is also manifest that the dispute has arisen out of a contract and the same also involves numerous disputed questions of facts.
It is pertinent to add that In the case of Food Corporation of India and ors. V/s Harmesh Chand (2006) 7 SC 654 which has been relied upon by the respondent, the Hon'ble Apex Court observed as under:-
" 5. The grievance of the appellant is that the High Court ought not to have gone into seriously disputed questions of fact in its writ jurisdiction. The writ petitioner (the respondent herein) challenged the action of the appellant contending that he was prevented by the appellant from working the contract. This was disputed by the appellant. It was submitted before us by reference to the record of an earlier petition under Section 482 Cr.P.C filed by the respondent wherein his case was that he was prevented from working the contract by the Truckers' Union acting at the behest of the earlier contractor. In any event, since the facts were seriously disputed by the appellant, and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High court ought to have exercised its writ jurisdiction to adjudicate the matter."
Similarly, in an earlier judgment M/S Radhakrishna Agarwal and Ors. V/s State of Bihar and Ors., in Civil Appeal Nos.227 and 228 of 1976, the Apex Court observed in paragraph-15 as under:-
"15. It then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran V. The state of Bihar and Lekharaj Satramdas V. Deputy Custodian-cum-Managing Officer and B. K. Sinha V. State of Bihar, that no writ or order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy a breach of contract pure and simple."
In view of the aforesaid proposition of law and the fact that the Clause XVIII of the tender condition of which petitioner is a signatory, lays down in explicit words that in case of any dispute, at the first instance it would be raised before the Dispute/Grievance Redressal Committee at the Zonal Office of the Corporation and thereafter, if the dispute is not settled, the same would be settled in the court of law having competent jurisdiction.
In our opinion the Court of law having competent jurisdiction mention in Clause XVIII of the tender document refers , in law, the authority of a court to deal with specific matters. Competence refers to the legal "ability" of a court to exert jurisdiction over a person or a "thing" (property) that is the subject of a suit. Here it is relevant to mention that Section 9 of the CPC provides that Courts to try all civil suits unless barred by law. It reads as under:-
"Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation 1- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II-
For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
On perusal of the aforesaid Section, it is obvious that in all types of civil disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.
Thus, in our considered view the court of competent jurisdiction in the instant matter is the Civil Court and not the High Court. The High Court under Article 226 of the Constitution exercises discretionary extraordinary jurisdiction. Moreover, in the case of M.K.Jose (supra), which has been relied upon by the petitioner, the Apex Court in paragraph 13 has observed that a writ court should ordinarily not entertain a writ petition, if there is a breach of contract involving disputed questions of fact.
Needless to say that though under Article 226 of the Constitution, the jurisdiction of the High Court is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a Civil court under the ordinary law. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum.
For the reasons aforesaid, the writ petition is dismissed on the ground of alternative remedy available to the petitioner as provided in the tender agreement. It is clarified that we have not delve into the the merits of the case.
Order Date: 4.10.2017 Haseen U.