Naresh Kumar Gupta vs Union of India

The petitionercontractor entered into a works contract with the respondents for construction of buildings to provide accomodation for married

CGOs/HAVs/OR at Baramulla vide works contract No. CESZ14/91/92, besides, accomodation for MED Regt. at Rattan vide Contract No.

SESZ/07/9394. He claims to have completed these works on 06051997 and 06011998 respectively. To substantiate the contention, reliance is

placed on the certificate issued by respondent No. 3 vide No. 8101/CESZ14/9192/992/EB dated 06051997 which is said to have been issued in

terms of condition 49 of the General Conditions of the Contract enshrined in IAFW2249. 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.

The respondents have vehemently oppossed the maintaniability 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 IAFW2249 which is extracted and reproduced for facility of reference.

70Arbitration: All disputes between the parties to the contract (other than for which the decision of CWE of 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 documents.

The language of clause makes it very clear that in the event of dispute arising out of the 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 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 IAFW2249. 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.

Here it is advantageous to refer to the judicial pronouncement of the apex court in State of U.P. versus. Bridge & Rood 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 contains 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 was not 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.

Yet another case, recent in point of time, the apex court in Asgar S. Patel versus. 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.

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.