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2012 DIGILAW 2 (CAL)

B. Engineer And Builders Ltd. v. UNION OF INDIA

2012-01-02

J.K.BISWAS

body2012
JUDGMENT 1. THE petitioner in this WP under Art. 226 dated November 16, 2011 is questioning a decision of South Eastern Railway dated October 13, 2011 (at p.198) terminating the contract between the parties under "Clause 62 of GCC, 2001 of S.E. Railway" with immediate effect. 2. SOUTH Eastern Railway issued a notice dated September 28, 2011 (at p.196) stating and demanding as follows: "The above mentioned work was awarded to your firm vide Agreement no under reference with the stipulation to complete the work within 10.02.2012, i.e. eleven months from the date of issue of acceptance letter. Despite Of repeated instructions and correspondence as referred above as well as verbal instruction to complete the work pertaining to above agreement in subject matter, you have failed to show adequate progress for completing the works. Since no other alternative was left with the Railway 7(seven) days notice was issued vide letter quoted under reference (i) above. But you have taken no action to commence the work/show adequate progress of the work. As such, there is no other alternative left with the Railway Administration but to issue 48 hour notice. You are hereby given 48 hour notice in terms of Clause 62 of General condition of contract 2001 and on expiry of this period the above contract will stand rescinded and the work under this contract will be carried out as per relevant clause of GCC/agreement. This notice is being served without prejudice to any other rights and remedies available to the Railway administration." 3. QUESTIONING the notice dated September 28, 2011 the petitioner moved a WP under Art. 226 before the Orissa High Court. A copy of the WP has been produced by counsel for the railway. The WP was withdrawn unconditionally. 4. AFTER unconditionally withdrawing the WP filed in the Orissa High Court the petitioner filed this WP on November 16, 2011. Case stated in para 40 of the WP is as follows. "40. Your petitioner submits that your petitioner filed a writ petition challenging the impugned notice dated 28th September 2011 being W.P.{C) No.27172 of 2011 in the Hon'ble High Court at Orissa, Cuttack but subsequently taken steps to withdraw the same and undertakes to me the relevant document regarding withdrawal of the said writ petition at the time of hearing." 5. "40. Your petitioner submits that your petitioner filed a writ petition challenging the impugned notice dated 28th September 2011 being W.P.{C) No.27172 of 2011 in the Hon'ble High Court at Orissa, Cuttack but subsequently taken steps to withdraw the same and undertakes to me the relevant document regarding withdrawal of the said writ petition at the time of hearing." 5. DURING pendency of this WP the petitioner filed an application for modification of the order of the Orissa High Court dated December 12, 2011 permitting unconditional withdrawal of the WP filed in that Court. Case stated in paras 3, 4 and 5 of the application (registered as Misc. Case No. 19683 of 2011) is as follows: "3. That during pendency of the writ application, the Petitioner being advised that this Hon'ble Court has no territorial jurisdiction over the subject matter filed W.P. No. 19192 (W) of 2011 in the High Court of Kolkata on dated 16.11.2011 for the selfsame relief, where the entire cause of action arose. Accordingly the Petitioner filed a memo on 25.11.2011 to withdraw the writ application to pursue his remedy before the Hon'ble Kolkata High Court. 4. That on 12.12.2011, this Hon'ble Court has been pleased to direct withdrawal of the writ application, but no liberty is granted to the Petitioner to pursue his remedy before the Hon'ble Kolkata High Court. 5. That the, order dated 12.12.2011 of this Hon'ble Court being an unconditional withdrawal without any liberty to the Petitioner to pursue his remedy before the Hon'ble High Court of Kolkata, the Petitioner may not be able to pursue his remedy in the High Court of Kolkata." 6. BY an order dated December 20, 2011 the Orissa High Court dismissed the Misc. Case. The order dated December 20, 2011 is quoted below: "This Misc. Case has been filed by the petitioner for modification of the order dated 12.12.2011 passed in W.P. (C) No.27172 of 2011. On that date learned counsel for the petitioner prayed for withdrawal of the writ petition. Accordingly, this Court permitted the petitioner to withdraw the writ petition and dismissed the writ petition as withdrawn. However, petitioner again, by filing this Misc. Case, is praying for modification of the said order. As the writ petition is withdrawn on the prayer of the petitioner, there is no need for any further modification. The Misc. Case is accordingly dismissed." 7. However, petitioner again, by filing this Misc. Case, is praying for modification of the said order. As the writ petition is withdrawn on the prayer of the petitioner, there is no need for any further modification. The Misc. Case is accordingly dismissed." 7. ON these facts, I am unable to accept the argument of counsel for the petitioner that this WP has been filed on a cause of action completely different from the one on which the petitioner had filed the WP before the Orissa High Court. Nowhere in this WP it has been stated that this WP is based on a separate cause of action. A case argued by counsel at the bar, evidently, contrary to the case stated by the petitioner in its application filed before the Orissa High Court, cannot be entertained. 8. I do not find any reason to entertain the argument that since the petitioner is alleging that the contract has been terminated in gross violation of the principles of natural justice and the provisions of Art. 14, the petitioner is entitled to move the High Court under Art. 226. 9. IT is to be noted that counsel for the petitioner has relied on the decisions in Jute Corporation of India Ltd. v. Nellimaria Jute Mills Co. Ltd. and Anr., (1993)1 Cal LT 79 (HC); Raj Chowdhury v. Union of India. AIR 2000 Cal 232 ; V.D. Barotv. State of Gujarat, (2002) 10 SCC 668 ; Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors., (2003)2 SCC 107 ; Atrayee Gas Service v. Indian Oil Corporation Limited and Ors., 2005 (2) CHN 50 and Union of India and Anr. v. The Hon'ble Chief Justice, High Court at Calcutta and Ors., (2006)1 Cal LT 21 (HC). 10. IT is not a matter of course that when an allegation is made that a contract, such as the one that has been terminated by the railway in this case, has been terminated in violation of the principles of natural justice and the provisions of Art. 14, a WP under Art.226 questioning the termination is to be entertained. IT is entirely a matter of discretion of the High Court whether, on the facts, the. WP should be entertained even after noticing that the petitioner's ordinary remedy under the contract is before the arbitral tribunal. 11. IT is entirely a matter of discretion of the High Court whether, on the facts, the. WP should be entertained even after noticing that the petitioner's ordinary remedy under the contract is before the arbitral tribunal. 11. IN this case there is no dispute that the petitioner had a remedy before the arbitral tribunal. Counsel has said that since proceedings, if initiated before the arbitral tribunal, will take a long time to attain finality and that in the meantime the railway may give the work in question to some other party, the petitioner has rightly decided to avoid the arbitral tribunal and approach the Writ Court. There is absolutely no merit in the argument. 12. IT is inconceivable that a party having remedy under the Arbitration and Conciliation Act, 1996 should be permitted to approach the High Court under Art. 226 on the grounds that proceedings if initiated under the Act will take a long time to attain finality. Interference by the Writ Court on such ground will defeat the whole purpose of Act providing for speedy and effective adjudication of private law disputes. 13. IT is totally wrong to say that during pendency of proceedings before the arbitral tribunal the petitioner could not seek interim relief. Section 9 of the Act gives complete answer to the baseless apprehension. For these reasons, the WP is dismissed. No costs. Certified xerox. Writ petition dismissed.