Gauhati High Court
Gourav Gohain Boruah vs The Union Of India And 6 Ors on 1 November, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
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GAHC010170672021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/263/2021
GOURAV GOHAIN BORUAH
S/O LATE CHAMPAK GOHAIN BORUAH, NORTH LAKHIMPUR, WARD NO.3
NA KARI, P.S NORTH LAKHIMPUR, DIST. LAKHIMPUR, ASSAM, PIN 787001
VERSUS
1. THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF
RAILWAYS, RAIL BHAWAN, NEW DELHI.
2:THE GENERAL MANAGER
N.F. RAILWAY MALIGAON GUWAHATI 11
3:THE SENIOR DIVISIONAL COMMERCIAL MANAGER
RANGIA DIVISION RANGIA DIST. KAMMRUP (R) ASSAM.
4:THE DIVISIONAL RAILWAY MANAGER (C)
N.F. RAILWAY RANGIA DIVISION RANGIA DIST. KAMRUP (R) ASSAM.
5:ASSTT. COMMERCIAL MANAGER
N.F. RAILWAY RANGIA DIST. KAMRUP (R) ASSAM
6:THE DIVISIONAL SECURITY COMMISSIONER (DSC)
N.F. RAILWAY RANGIA DIST. KAMRUP (R) ASSAM.
7:THE STATION SUPERINTENDENT
NORTH LAKHIMPUR RAILWAY STATION DIST. LAKHIMPUR PIN 78700
Advocate for the Petitioner : MR T H HAZARIKA
Advocate for the Respondent : SC, RAILWAY
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-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE KAKHETO SEMA
ORDER
Date : 01-11-2021 Heard Mr. M. Chutia, learned counsel for the appellants. Also heard Mr. B. Sharma, learned standing counsel, N.F. Railway, appearing for all the respondents.
The petitioner was given a contract to run a canteen at North Lakhimpur Railway Station from 01.11.2015 to 31.10.2020. A contract agreement in this regard was also signed between the parties. After expiry of the aforesaid period, when the contract license was not renewed, the appellant approached this Court by way of a writ petition, being WP(C) No.4815/2021.
Objections were made as to the maintainability of the writ petition by the respondent Railway. One of the main objections was that when a contract has been executed between the parties, although certain rights have accrued in favour of the petitioner, there being an arbitration Clause in the agreement for resolution of the dispute, if any, between the parties, the remedy available to petitioner is to invoke the arbitration Clause and not to approach the court by filing writ petition.
The writ petition was rightly dismissed by the learned Single Judge vide order dated 20.09.2021.
Aggrieved by the order passed by the learned Single Judge, the appellant has filed the present writ appeal.
Admittedly, on the basis of a contract executed between the appellant and the Railway Authorities, the appellant/petitioner was running Page No.# 3/4 a canteen at North Lakhimpur Railway Station. This contract has an arbitration Clause, which reads as under:-
"Article 19 Dispute Resolution 19.1 In the event of any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement between the parties ('Disputes'), the parties shall firstly attempt to amicably resolve such Disputes through the highest level of negotiations and discussions.
19.2 In the event that Disputes between the parties subsist beyond 30 days of negotiations between the Parties, then the Dispute shall be settled as per the provisions of Arbitration and Conciliation Act 1996. The dispute shall be referred to:
(a) Sole arbitration of a Gazetted Railway Officer appointed to be the arbitrator, by the General Manager of the Zonal Railway awarding the License. The Gazetted Railway Officer to be appointed as arbitrator however will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of their duties as railway servant have expressed views on all or any of the matters under dispute or difference.
(b) In the event of the arbitrator dying, neglecting or refusing to act or resigning or being unable to act for any reason, or his award being set aside by the court for any reason, it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid.
(c) It is further a term of this contract that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not to be referred to arbitrator at all.
(d) The arbitrator may from time to time with the consent of all the parties to the contract enlarge the time for making the award.
(e) Upon every and any such reference the assessment of the cost incidental to the reference and award respectively shall be in the discretion of the arbitrator.
(f) Subject as aforesaid, the Arbitration and Conciliation Act, 1996 and the rules thereunder and any statutory modifications thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause.
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(g) The venue of the arbitration shall be the place from which the acceptance note is issued or such other place as the arbitrator at his discretion may determine.
(h) In this clause the authority to appoint the arbitrator includes, if there be no such authority, the officer who is for the time being discharging the functions of that authority, whether in addition to other functions or otherwise.
19.3 The award passed shall be final and binding and both parties waive the right to appeal or contest the arbitral award.
19.4 It is further clarified that during the resolution of the Disputes, the Licensee shall be obligated for the continued performance of its obligations under the Agreement until the resolution of the Disputes."
This being the admitted position, the writ petition has rightly been dismissed by the learned Single Judge as the petitioner has an alternative remedy to invoke arbitration Clause in the matter and not to approach the court by way of a writ petition. We cannot take a view different from the one taken by the learned Single Judge.
Accordingly, the writ appeal is dismissed.
JUDGE CHIEF JUSTICE Comparing Assistant