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2002 DIGILAW 652 (JHR)

State Of Bihar v. Bhupendra

2002-06-14

HARI SHANKAR PRASAD, M.Y.EQBAL

body2002
ORDER 1. Heard Mr. B.S. Lal, learned Addl. A. G. appearing for the appellant. No one appears on behalf of the respondents. 2. This appeal under Clause 10 of the Letters Patent is directed against the order dated 3,5.1994 passed in CWJC No. 956 of 1992 (R), whereby the learned single Judge allowed the writ application and quashed the demand made by the appellant with regard to hire charges of the machineries amounting to Rs. 3,40,690.52 paise. 3. The petitioner-respondent filed aforesaid writ application seeking a declaration that the concept of minimum working hours on the use of various machines let out to the petitioner by its principal employer is illegal and for quashing the demand raised by the appellant for payment of hire charges on the basis of agreement. 4. The writ petitioner (respondent No. 1) entered into a civil contract with the appellant, M/s. Subarnarekha Multipurpose Project. The contract was for excavation of earth and bed lining of canal on Subarnarekha left Bank Canal. Petitioners case is that for the purpose of excavation of the earth and for dressing the layer of earth it was agreed that the machine like Buldozers, motors, wheel dozers, rig machines, low bed trailers, cranes etc., shall be provided by the appellant on payment of hire charges. Further case of the petitioner-respondent was that the log-book was maintained only for the hours of the use of various machines which were noted and on the basis of that log-book hire charges were demanded by the appellant amounting to Rs. 78,164.75 paise. The said amount was paid by the petitioner. However, the appellant was again asked to pay hire charges to the extent of Rs. 3,40.690.50 paise on the basis of the agreement whereby it was agreed that the hire charges, shall be payable at minimum of seven hours per day. The writ petitioner challenged the demand on the ground inter alia, that there was no, such agreement for payment of hire charges at the rate of seven hours per day. 5. The learned Single Judge on the basis of finding recorded by him in CWJC No. 1084/1991 (R) held that no document were mentioned on the basis of which the appellants were entitled to recover the hire charges for seven hours per day. 6. 5. The learned Single Judge on the basis of finding recorded by him in CWJC No. 1084/1991 (R) held that no document were mentioned on the basis of which the appellants were entitled to recover the hire charges for seven hours per day. 6. The appellants have annexed a copy of agreement as Annexure I to the memo of appeal which, inter alia, shows that the writ petitioner agreed to pay hire charges by taking minimum seven hours working per day for single shift and or 12 hours for double shift. It further appears that in the contract entered into between the appellants and the respondents there was an arbitration clause, which inter alia, provides that all disputes or differences arising out of the contract shall be referred for arbitration to the sole Arbitrator. 7. The relief sought for by the writ petitioner is in the nature of declaration that the claim of the appellant for hire charges for seven working hours every day was illegal and arbitrary, need adjudication. Before deciding the question raised by the petitioner, this Court has to go into the agreement entered into between the parties and also to find out whether hire charges was payable on the basis of the use of machines entered in the log-book or at the minimum seven hours per day in terms of the agreement (Annexure I). In our opinion, this question cannot be adjudicated by a writ court exercising writ jurisdiction. It is well settled that any dispute arising out of a contract containing arbitration clause cannot and shall not be decided in a writ petition. Reference in this connection may be made to the decision of the Supreme Court in the case of Birsa Stone Lime Co. Ltd. and Ors. v. Orissa State Electricity Board and Anr., AIR 1976 SC 127 . The learned Single Judge, therefore, erred in law in entertaining the writ petition and deciding a question which is based on the agreement entered into between the parties for excavation of certain works. If the petitioner was aggrieved by the demand made by the appellant or aggrieved by the action of the appellant in deducting hire charges from the bill it could have either invoked, the arbitration clause contained in the contract or to get their right adjudicated by a Civil Court of competent jurisdiction. The impugned judgment, therefore, cannot be sustained in law. 8. The impugned judgment, therefore, cannot be sustained in law. 8. The appeal is, therefore, allowed and the impugned judgment passed by the learned Single Judge is set aside. However, it is held that the petitioner shall be at liberty to invoke arbitration clause or other remedy available in law and it will be entitled to get benefits of Section 14 of the Limitation Act.