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2023 DIGILAW 449 (RAJ)

Abdul Vahid v. Union Of India

2023-02-07

GANESH RAM MEENA

body2023
ORDER : Ganesh Ram Meena, J. By way of filing instant instant writ petition under Article 226 of the Constitution of India, the petitioner has prayed to issue direction to the respondents to refund the security amount with interest to him which he deposited. 2. Counsel for the petitioner submits that a tender notice dated 5.4.2016 was issued by the respondent for cycle, motor-cycle stand at Kota Junction and after due process, the tender of the petitioner was accepted and he started the work of cycle stand from 01.8.2016. Counsel submits that the licence agreement for the same was executed on 20.06.2017 on certain terms and conditions. After expiry of period of 12 months, the petitioner submitted an application on 21.07.2017 before the respondent No.2 for termination of the licence issued to him w.e.f. the Month of September 2017 on the ground that he is suffering a great loss due to imposition of GST. Counsel submits that the petitioner deposited Rs.41,51,804/- as a security amount which may be refunded to him along-with the interest. 3. In the reply to the writ petition it has been averred by the respondents that there is an Arbitration Clause in the agreement, therefore, the writ petition filed by the petitioner is not maintainable and the petitioner should have proceeded for arbitration proceedings. Counsel submits that the petitioner is under an obligation to pay the tax enforced by law, if any, as per Condition No.14 of the notice inviting tender. 4. Heard. 5. Counsel for the petitioner has submitted that the petitioner submitted an application for termination of the contract in view of Clause No.13 of the licence agreement executed between the parties on 20.06.2017 and the respondents are under an obligation to refund the security amount which is with them as a security. Clause No.13 of the licence agreement reads as under:- "The privileges in Clause I hereof mentioned are granted on the express understanding that the licensee/ licensees shall be at liberty to determine and to put an end to the license, any time after the expiry of the period of 12 months from its coming into force, without being liable for loss or damage which the Railway Administration may suffer by reason of such determination, by giving the Railway Administration three months prior notice in writing of his intention to terminate the agreement." 6. As per the aforesaid Clause, three months prior notice in writing is essential for terminating the agreement. The petitioner submitted an application on 21.07.2017 for termination of the contract w.e.f. the Month of September 2017. Another application, the petitioner stated to have submitted on 4.8.2017 for termination of the contract, even without mentioning the specific date therein for termination of licence. 7. This Court does not find any application in the case file showing that three months prior notice has been given by the petitioner, which is basic and mandatory requirement under Clause 13 of the Licence Agreement for termination of the contract. 8. As per Condition No.27 of the licence agreement, all disputes, questions or differences arising out of or in any way touching or concerning this agreement (except those the decision whereof is otherwise here in force specifically provided for) shall be referred to the sole arbitration of any person appointed by the Chief Commercial Manager, West Central Railway at the time of such appointment. There will be no objection to any such appointment that the person appointed is a Government Servant, that he has to deal with the matters to which the agreement relates and that in the course of his duties as such Government Servant he had expressed the views oni all or any of the matters in dispute or difference. The award of such arbitrator shall be final and binding on the parties to the agreement. Condition No.26 of the licence agreement reads as under:- "All disputes, questions or differences arising out of or in any way touching or concerning this agreement (except those the decision whereof is otherwise here in force specifically provided for) shall be referred to the sole arbitration of any person appointed by the Chief Commercial Manager, West Central Railway at the time of such appointment. There will be no objection to any such appointment that the person appointed is a Government Servant, that he has to deal with the matters to which the agreement relates and that in the course of his duties as such Government Servant he had expressed the views on all or any of the matters in dispute or difference. The award of such arbitrator shall be final and binding on the parties to the agreement. The award of such arbitrator shall be final and binding on the parties to the agreement. It is a term of this Agreement that in the event of such arbitrator to whom the matter is originally being transferred or vacating his office or being unable to act for any reason such Chief Commercial Manager West Central Railway as aforesaid at the time of such transfer vacation of office or inability to act, shall appoint another person to act as Arbitrator in accordance with terms of this agreement, such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this agreement that no person other than a person appointed by the Chief Commercial Manager West Central Railway as aforesaid should act as Arbitrator and if for any reason that it is not possible the matter is not to be referred to arbitration at all. Subject as aforesaid, the provision of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made there under from time to time shall apply to such arbitration. The Arbitrator may with the consent of the parties extend from time to time, the tenure for making and publishing the award. The venue of arbitration shall be at Kota." 9. In view of the terms and conditions of the licence agreement dated 20.06.2017 (Annex.1), the petitioner could have submitted his claim for refund of security amount under the Arbitration Proceedings as provided in Clause 26 therein. 10. Clause 13 of the licence agreement provides for termination of the licence after expiry of period of 12 months by giving three months prior notice in writing of his intention to terminate the agreement. 11. Clause 10(i) of the licence agreement provides for situations when forfeiture of security could be made. Clause 10(i) of the licence agreement reads as under:- "(i) Forfeiture of Security Deposit: In case the Licensee/Licensees makes/make any default in the payment of the rent, tax or any other charges that may be due to the Administration, the Administration shall be at liberty to recover such rent or other dues from the said amount of security deposit, forfeit the balance if any as liquidated damage forthwith determine the Licensee/ Licensees and proceed to resume possession in a manner stipulated herein." 12. The petitioner could not show that at any point of time he has submitted three months prior notice in writing of his intention to terminate the agreement to the Railway Administration, and therefore, the amount of security deposited by the petitioner is liable to be forfeited. Thus, the claim of the petitioner for refund of the security amount is without any substance. 13. In view of the above, the writ petition filed by the petitioner is devoid of merits and accordingly dismissed. 14. However, in the interest of justice, liberty is granted to the petitioner to raise his claim under the Arbitration Proceedings as provided under Clause 26 of the Licence Agreement.