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2011 DIGILAW 317 (GAU)

Johnson Eastern Power v. State of Mizoram

2011-04-07

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. As agreed to by the learned Counsel for the parties, the instant writ petition is taken up for final disposal at the admission stage. 2. This writ petition has arisen out of a contract Agreement dated 23.11.1999, Annexure-3 to the writ petition, between the petitioner and the respondent No. 3, the Chief Engineer, Public Health Engineering Department, Aizawl, Mizoram for construction of Greater Aizawl Water Supply Scheme Phase-II. 3. Heard Mr. C. Lalramzauva, learned Senior Counsel assisted by Mr. T. J. Lalnuntluanga, learned Counsel for the petitioner as well as Mr. B. Deb, learned Advocate General assisted by Mr. Aldrin Lallawmzuala, Addl. Advocate General appearing for the State respondents. 4. To appreciate the contention canvassed by the learned Counsel of the rival parties, the fact materials for the purpose may shortly be stated as under: The petitioner, M/s Johnson Eastern Power, a class-I registered and proprietorship firm of Mizoram entered into an Agreement with the respondent No. 3 on 23.11.1999, Annexure-3 to the writ petition. Before entering into such agreement, the respondent No. 3 had issued a letter dated 02.11.1999, Annexure-2 to the writ petition, to the petitioner to complete the formalities and to sign the contract agreement and also to start the work in consultation with the PHE Department as on recommendation of the Mizoram Work Advisory Board, Government of Mizoram, the PHE Department approved the award of the above mentioned work in favour of the petitioner's firm. Thereafter, while the petitioner was proceeding with the work in question, all on a sudden, by a letter dated 09.05.2001, Annexure-5 to the writ petition, the Sub-Divisional Officer, PHE, Drainage Sub-Division, Aizawl asked the petitioner to stop the work stating, inter alia, that the scope of the assigned work was likely to face some possible technical change and as such, for almost six months, the said work remained stopped and the petitioner had to keep the huge men and material mobilized by him for the work idle and had to incur losses. Subsequently, the said Sub-Divisional Officer vide his letter dated 14.09.2001, Annexure-6 to the writ petition, requested the petitioner to resume the work and the petitioner resumed the work. Subsequently, the said Sub-Divisional Officer vide his letter dated 14.09.2001, Annexure-6 to the writ petition, requested the petitioner to resume the work and the petitioner resumed the work. On 09.09.2004, the petitioner informed the respondents that they had already started the work of excavation of Raw Water-II pump house and sump in Greater Aizawl Water Supply Scheme, Phase-I complex and since the area is populated and there are existing structures near the area being excavated, they cannot use explosive for progressing the work and they are compelled to progress the work by excavating manually and this unforeseen situation is leading to delay in progressing the work and it would take some more time for completion. The petitioner also informed regarding the unavailability of cement and he requested the respondents authorities to make necessary arrangement for procurement of cement for the Greater Aizawl Water Supply Scheme Project to enable the petitioner to continue the civil works. Ultimately, vide letter dated 18.11.2009, Annexure-13 to the writ petition, the respondent No. 3 has terminated the contract and taken possession of the sites and all materials, equipments, plants etc. required for completion of the project. 5. Being aggrieved by the aforesaid action of termination of contract, the petitioner filed the instant writ petition with a prayer for setting aside the impugned letter dated 18.11.2009 and also with an interim prayer for staying the said impugned letter. 6. The state respondents by way of filing an affidavit in opposition raised the question of maintainability of the present writ petition on the ground that in the contact Agreement, there is an Arbitration clause namely, Clause-16, as it would be evident from Annexure-11 of the writ petition to settle the dispute between the parties in accordance with the Rules of Arbitration of the Indian Council of Arbitration, 1998 and the award of any such arbitration proceedings shall bind the parties in the Agreement. 7. In para-11 of the said affidavit, the respondents also made statements, inter alia, that the payments were made to the writ petitioner to the tune of Rs. 65.53 crores against the contract amount of Rs. 99.32 crores upto 28.08.2008. As per Clause-7 and 8 of Commercial Terms and Condition of Contract Agreement, no extra payment will be made to the writ petitioner on any ground whatsoever. The contract prices quoted are firm. Hence no extra claim beyond the contract price could be entertained. 65.53 crores against the contract amount of Rs. 99.32 crores upto 28.08.2008. As per Clause-7 and 8 of Commercial Terms and Condition of Contract Agreement, no extra payment will be made to the writ petitioner on any ground whatsoever. The contract prices quoted are firm. Hence no extra claim beyond the contract price could be entertained. The further case of the respondents is that the petitioner failed to complete the whole project within the stipulated period of 48 months which expired on 29.03.2004. As the petitioner could not complete the work in time, extension of time was granted up to 27.01.2006 and thereafter further extension of time was granted upto 28.02.2009. As the petitioner was very slow in its work, it could not complete work even after a lapse of almost ten years which was supposed to be completed within four years and the State respondents had no other option except to terminate the contract and accordingly, that was done in the interest of public service. 8. In para-21 of the affidavit in opposition, the State respondents took a specific plea that as per Clause-16 of the Commercial Terms and Conditions of the contract Agreement of the Greater Aizawl Water Supply Scheme Phase-II dated 23.11.1999, any dispute or difference, whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this contract or the validity or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration 1998 as amended thereof and the award made in pursuance thereof shall be binding on the parties. 9. After filing of the affidavit in opposition, and while the matter was taken up for admission hearing, the petitioner filed the affidavit in reply and the additional affidavit in reply. In the affidavit in reply, mainly the petitioner annexed certain documents which are required to be proved by adducing evidence and in the additional affidavit in reply, the petitioner in para-3 of the said reply specifically stated that the petitioner has taken up the dispute in question before the Indian Council of Arbitration (for short, hereinafter referred to as Council of Arbitration) and the Registrar of the Indian Council of Arbitration has issued a notice to the respondent No. 3 for depositing the amount towards the arbitration between the petitioner and the respondent No. 3. 10. 10. More so, when the matter is taken up for admission hearing, the petitioner has submitted an application for amendment of the writ petition with a prayer for directing the respondents to release the admitted amount of Rs. 55,91,61,039/- to the petitioner. The said prayer for amendment has been allowed by this Court as the learned Advocate General has submitted that the State respondents will not file any reply to the said prayer for amendment on the ground that the writ petitioner has already approached the Indian Council of Arbitration relating to the work in question arising out of contract Agreement, Annexure-3 to the writ petition as per clause-16 of the contract Agreement (Annexure-11 to the writ petition), as it has already been decided by the Apex Court that when there is an arbitration clause in a contract, the petitioner has to approach the arbitral forum, not to the writ Court and according to the learned Advocate General, in the instant case, the petitioner did some works even outside the Agreement without any sanction of the appropriate authority which are totally impermissible under the law and cannot be decided in a writ Court. According to him, the proper forum is the Civil Court where both the parties would get opportunity for adducing their respective evidences. 11. Mr. Lalramzauva, learned senior Counsel for the petitioner in his usual fairness at the very outset of hearing submits that the petitioner will not press his prayer so far as questioning the termination of contract is concerned. He mainly urges before the Court on the question of maintainability. According to him, the instant writ petition is maintainable as one of the claim of the petitioner after amendment of petition is for the admitted amount and non-action of the respondents so far as the payment of admitted amount is concerned is outside the Arbitration clause. Therefore, the same can be decided by this Court in exercising its writ jurisdiction. He further submits that the Apex Court on Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. Therefore, the same can be decided by this Court in exercising its writ jurisdiction. He further submits that the Apex Court on Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. (2003) 2 SCC 107 stated that in an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 12. He further tried to convince this Court, inter alia, that the present writ petition is maintainable even when admittedly there is an Arbitration Clause in the contract in view of the decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 SCC 1 , particularly, he referred to para-14 and 15 of the said report. He finally contended that in Para-19 and 23 of ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553 , the Apex Court declared the law relating to alternative remedy and noted that merely because one of the parties to the litigation raised a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit and when there is a condition of a fundamental right of a citizen which violates Article 14 of the Constitution, the Court has the power to set aside the arbitrary action of the State respondents. 13. To counter the contention of Mr. Lalramzauva, Mr. Deb, learned Advocate General has taken this Court to a decision of the Apex Court in M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Ann., AIR 1976 SC 127 wherein the Apex Court in Para-23 and 24 held that the Court should not use its discretion in favour of arbitration in a matter where it is a pure question of law. Ltd. v. Orissa State Electricity Board and Ann., AIR 1976 SC 127 wherein the Apex Court in Para-23 and 24 held that the Court should not use its discretion in favour of arbitration in a matter where it is a pure question of law. He also tried to convince this Court that when the petitioner has already approached the Indian Council of Arbitration and the matter is subjudice there, the petitioner is debarred from approaching this Court to decide the dispute arising out of the same Agreement (Annexure-3 to the writ petition). The para-23 and 24 of the said report are reproduced hereunder: 23. Although the Press Note in the instant case did not recite any provisions of the Act under which the same was issued, mere omission to do so does not disentitle the Board to rely upon clause 13 of the agreement for a claim to revision of the rates, although in the form of a surcharge in this case. We, therefore, do not give any significance to the omission in the Press Note to refer to clause 13 or to any other provision of the Act. The matter is, therefore, covered by the arbitration clause 23 of the agreement. It is not for this Court to speculate what answers the Arbitrator will enter with regard to the disputed questions that may be raised before him. We are not to be understood as expressing any opinion on the merits of the dispute or difference between the parties with regard to the surcharge. 24. It is then submitted that this Court should not use its discretion in favour of arbitration in a matter where it is pure question of law as to the power of the Board to levy a surcharge. This submission would have great force if the sole question involved were the scope and ambit of the of the power of the Board under Sections 49 and 59 of the Act to levy a surcharge, as it was sought to be initially argued. The question in that event may not have been within the content of clause 23 of the agreement. The question in that event may not have been within the content of clause 23 of the agreement. But all questions of law one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the Court has discretion under Section 34 of the Arbitration Act or under Article 226 of the Constitution and that the Court is better posted to decide such questions. The arbitration clause 23 is a clause of wide amplitude taking in its sweep even interpretation of the agreement and necessarily, therefore, of clause 13 therein. We are, therefore, unable to accede to the submission that we should exercise our discretion to withhold the matter from arbitration and deal with it ourselves. 14. He also placed reliance on a decision of the Apex Court in State of UP and Ors. v. Bridge and Roof Co. (India) Ltd. AIR 1996 SC 3515 , wherein the Apex Court at Para-21 held that: 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 dispute 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-recognized 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. 15. 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. 15. He also referred to para-17 of the said report wherein the Apex Court held that: 17....Whether there has been a reduction in the statutory liability on account of a change in law within the meaning of sub-clause (4) of Clause 70 of the Contract is again not a matter to be agitated in the writ petition. That is again a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court as the case may be according to law. Similarly if the government says that any over-payments has been made to the respondent, its remedy also is the same. (emphasis supplied) 16. Mr. Deb, learned Advocate General also took me to a decision rendered by a coordinate Bench of this Court in Ronix Polymer Pvt. Ltd. v. State of Tripura and Ors. 1999 (1) GLT 295 wherein after taking note of Clause 25 of the Agreement in question therein and also taking note of Paragraph-29 of State of U.P. V. Bridge and Roof Co. (India) Ltd. (supra), held that: I am of the view that it is very much a dispute coming within the purview of Clause-25 (supra) and this Clause cannot be superseded by the minutes Annexure-9 and ultimately held that "the petitioner ought to have approached arbitrator for settlement of the dispute by reference to arbitration. 17. The learned Advocate General has also placed reliance on a decision of the Apex Court in Kerela State Electricity Board and Anr. v. Kurine E. Kalathil and Ors. (2000) 6 SCC 293 , wherein the Apex Court considering the question of maintainability of the writ petition noted that: we find that there is a merit in the first contention of Mr. Raval. Learned Counsel has rightly questioned the maintainability of the writ petition. v. Kurine E. Kalathil and Ors. (2000) 6 SCC 293 , wherein the Apex Court considering the question of maintainability of the writ petition noted that: we find that there is a merit in the first contention of Mr. Raval. Learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties comes within the purview of the Contract Act that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature. (emphasis supplied) 18. Finally, the learned Advocate General has placed reliance on a decision in the case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd., (2002) 1 SCC 216 , wherein the Apex Court considering the question of maintainability of a writ noted inter alia "settled law-writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226." 19. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226." 19. Having heard the learned Counsel for the parties and on going through the relevant records as available before this Court including the pleadings as well as citation of law of revision, this Court is of considered opinion that admittedly, the petitioner, during pendency of the writ petition, has approached the Council of Arbitration which would be evident from Annexure-R 4/18 of the Additional affidavit in reply filed on 23.03.2011 which reads as under: Indian Council of Arbitration (Registered under the Societies Registrations Act, 1860) Sponsored by Ministry of Commerce, Government of India Ref. No. ICA/AC/1758 courier December 6th 2010 To The Chief Engineer Public Health Engineering Department Mizoram Aizawl Dear Sir, Re: Johnson Eastern Power Vs. Chief Engineer, Public Health Engineering Department, Mizoram This has reference to our letter dated October 4, 2010 asking you to deposit the amount towards the above arbitration. This is to inform you that the claimant has been permitted to deposit the fees in three equal installments. You can avail the same benefit of paying the fees in installments. You are required to deposit the amount positively by January 2, 2011 and also forwarded us the name of the nominee arbitrator at the earliest. Yours sincerely Sd/- Registrar c.c. Johnson Eastern Power Zuangtui Industrial Estate Zuangtui Aizawl-796017 (Mizoram) 20. To appreciate the submission of the learned Counsel for the petitioner, it would be proper to reproduce Para-19 and 23 of the ABL International Ltd. (supra) as the same was referred and relied upon. Accordingly, those paragraph are reproduced: 19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 23. It is clear from the above observations of this Court, once the State or an instrumentally of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the above said requirement of Article 14, then we have no hesitation in holding that a writ Court can issue suitable directions to set right the arbitrary actions of the first respondents. In the context, we may note that though the first respondent is a company registered under the Companies Act, it is wholly owned by the Government of India. The total subscribed share capital of this Company is 2,50,000 shares out of which 2,49,998 shares are held by the President of India while one share each is held by the Joint Secretary, Ministry of Commerce and Industry and Officer on Special Duty, Ministry of Commerce and Industry respectively. The objects enumerated in the memorandum of association of the first respondents at para 10 read: To undertake such functions as may be entrusted to it by the Government from time to time, including grant of credits and guarantees in foreign currency for the purpose of facilitating the import of raw materials and semi-finished goods for manufacture or processing goods for export". Para 11 of the said object reads thus: To act as agent of the Government, or with the sanction of the Government on its own account, to give the guarantees undertake such responsibilities and discharge such functions as are considered by the Government as necessary in national interest. 21. Para 11 of the said object reads thus: To act as agent of the Government, or with the sanction of the Government on its own account, to give the guarantees undertake such responsibilities and discharge such functions as are considered by the Government as necessary in national interest. 21. There is no dispute that even when there is an alternative remedy, the High Court has the power to exercise its writ jurisdiction in an exceptional circumstances where the fundamental right of a citizen is affected by the State action. Not only that even the Court has the power to decide the disputed facts in a writ jurisdiction in view of the decision of the Apex Court in ABL International Ltd. (supra), but the exercise of the review power of the Court depends upon the facts situation of a case. In ABL International Ltd.(supra), no question arose for decision before the Apex Court relating to Arbitration clause, rather there was a specific clause in Agreement which provided for the mode of payment and the said Agreement was also subsequently amended and it was specifically noted that if the contract for barter of goods could not be finalized for any reason then the Kazak Corporation was to pay to the exporter for the goods received by it in US dollars within 120 days from the date of delivery. Not only that the case of the appellant therein was that if the Kazakhstan Government though admitted its liability to pay the balance of consideration amount did not fulfil its part of the guarantee given in the contract due to lack of funds. 22. Mr. Lalramzauva though tried to emphasize on his argument relying particularly this portion of facts which is similar to the claim of the petitioner as in the instant case also, according to Mr. Lalramzauva, the respondent No. 4, the Executive Engineer, Public Health Engineering Department in his letter dated 01.12.2008 admitted that there is an outstanding bill lying pending with the office of the Executive Engineer amounting to Rs. 55.25 crores. He also placed reliance on a document at page-22 of the amendment petition wherein it is mentioned that the payment of Rs. 58,66,1,039/-will be paid as and when fund is available. The said document though with the amendment petition, but not annexed with the writ petition. 55.25 crores. He also placed reliance on a document at page-22 of the amendment petition wherein it is mentioned that the payment of Rs. 58,66,1,039/-will be paid as and when fund is available. The said document though with the amendment petition, but not annexed with the writ petition. According to the learned Counsel for the petitioner, the said amount is the admitted amount though according to the learned Advocate General, the said amount is also the amount in question arising out of the same Agreement of the contract. 23. In view of the decision in Kerala State Electricity Board (supra), wherein the Apex noted that whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. Therefore, it can be easily said that the actual payment which the petitioner is claiming is the question of construction of contract and cannot be decided in a writ jurisdiction. 24. This Court has no quarrel that the proposition laid down in Harbanslal Sahnia (supra) wherein the Apex Court held that the High Court may still exercise its writ jurisdiction in spite of availability of alternative remedy where at least three contingencies are available. In the instant case, the petitioner asked for payment of his bill amount arising out of contractual contract, not enforcement of fundamental right. There is no allegation of failure of principal of natural justice, rather learned Counsel for the petitioner fairly submits that the petitioner has no allegations so far as the termination of contract is concerned and it is not the case of the petitioner that any order passed by the authority is without jurisdiction. Not only that the petitioner has also not challenged the vires of any Act. Therefore, the proposition laid down by the Apex Court in Harbanslal Sahnia (supra) is in no way helps the petitioner. 25. The learned Counsel for the petitioner placed reliance on Para-14 and 15 of the decision in the case of Whirlpool Corporation (supra) which are reproduced hereunder as that would help the Court to come to a proper conclusion. 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of this Constitution. 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of this Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and the certiorari for the enforcement of any of the Fundamental Rights contained in Part-Ill of the Constitution but also for "any other purpose. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 26. This Court has no quarrel with the proposition laid down by the Apex Court in Whirlpool Corporation (supra) regarding exercise of its plenary power. According to this Court, the Apex Court in the said judgment stated that the High Court, having regard to the facts of the case, has discretion to entertain and not to entertain a writ petition considering the facts of a particular case. Not only that the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. There is no doubt that even if the alternative remedy is available, the Court has the power to exercise its writ jurisdiction in a case where justice seeker sought for enforcement of any fundamental right or when there is any violation of natural justice or order or proceedings are without jurisdiction. There is no doubt that even if the alternative remedy is available, the Court has the power to exercise its writ jurisdiction in a case where justice seeker sought for enforcement of any fundamental right or when there is any violation of natural justice or order or proceedings are without jurisdiction. None of the aforesaid parameters has been violated in the instant case. 27. The learned Counsel for the petitioner while urging for relief also submits that the petitioner time to time acted on the basis of the instructions of the respondent No. 3 and did some works even beyond the Agreement and till today, the respondents authorities did not regularize those works either by way amending the contract. Agreement or by entering into a subsequent agreement. 28. In the case of Life Insurance Corporation of India and Ors. v. Asha Goel (Smt.) and Am., (2001) 2 SCC 160 , the Apex Court in para-10 held that: ...while the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution cannot be denied altogether, Courts must bear in mind the self-imposed restriction consistently followed by High Court all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The Courts have consistently taken the view that in a case where for determination of the dispute raised, it is necessary to inquire into facts for determination of which it may become necessary to record oral evidence, a proceeding under Article 226 of the Constitution, is not the appropriate forum. The position is also well settled that if the contract entered between the parties provides an alternate forum for resolution disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution. (emphasis supplied) In para-11 of the said report, the Apex Court also held that in a case where claim by an insured or a nominee is repudiated raising a serious dispute and the Court finds the dispute to be bona fide one which requires oral and documentary evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. (emphasis supplied) 29. (emphasis supplied) 29. From the whole submission of the learned Counsel for the parties and the pleadings available, it appears that the petitioner though entered into an agreement for construction of Greater Aizawl Water Supply Scheme, Phase-II, but acted even beyond the agreement. Therefore, according to this Court, some of the disputes are within the Agreement and some are beyond the Agreement. The disputes within the Agreement can be decided in an Arbitration proceeding as per Clause-16 of the Arbitration Clause i.e. Commercial terms and conditions of the contract, Annexure-11 to the writ petition, which reads as under: ARBITRATION: Any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this contract or the validity or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration 1998 as amended thereof and the award made in pursuance thereof shall be binding on the parties. 30. The disputes or the demands of the petitioner outside the Agreement not admitted by the respondents can only be decided by a Civil Court as the adducing of evidence is necessary. 31. According to this Court, when the petitioner admittedly approached the Council of Arbitration in terms of Clause-16 of the Arbitration clause, Annexure-11 to the writ petition, relating to the dispute arisen out of the Agreement, Annexure-3 to the writ petition, during pendency of the instant writ petition and which is the subject matter before this Court, including the alleged admitted amount, which is denied by the respondents, though not with a specific pleading, but by their action, the petitioner is not entitled to approach both the writ forum as well as arbitration forum simultaneously for the same relief. More so, when the Apex Court again and again reminding us not to use our discretionary power while there is arbitration clause in the Agreement and also noted that it is not for the Court to speculate what answers the Arbitrator will enter with regard to the disputed question, even if regarding the claim of money can also be raised before the Arbitrator, as denial of releasing money is also a dispute. The aforesaid view of this Court gets support from the law reports cited by the Advocate General, (See M/s Bisra Stone Lime Co. Ltd., Bridge and Roof Co. The aforesaid view of this Court gets support from the law reports cited by the Advocate General, (See M/s Bisra Stone Lime Co. Ltd., Bridge and Roof Co. (India) Ltd., Ronix Polymer Pvt. Ltd. and Kerala State Electricity Board (supra). 32. In view of the above discussion, this Court is of the opinion that the instant writ petition is not maintainable. As the writ petition is taken up for hearing on the question of maintainability and this Court answered the question in negative, it would not be proper for this Court to express any opinion regarding the claim of the petitioner being the same is also subjudice before the Council of Arbitration where the petitioner can claim about his alleged admitted claim. In the result, the writ petition is dismissed. However, the dismissal of the writ petition would not be a bar for the State respondents to settle up the dispute regarding the amount admitted by the State respondents. No order as to costs. Petition dismissed