1 WP [CASE NUMBER] HIGH COURT OF MADHYA PRADESH WP [CASE NUMBER] [PRECEDENT], Dated: 10/05/2018 Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], learned counsel for respondents
Heard finally with consent.
By this writ petition, the petitioner has challenged the inspection reports dated 1/8/2014 Annexure P/2 and 21/9/2014 Annexure P/3 as also the demand notices dated 23/9/2015 Annexure P/6, 15/10/2015 Annexure P/8, 23/5/2016 Annexure P/13 and 20th April, 2017 Annexure P/23 by which the amount has been demanded towards the cost of damages to railway wagon.
The case of the petitioner is that it is having a thermal power plant for which the coal is required which is directly supplied from the coal mines through railway wagons. The railway siding has been constructed by the petitioner where the railway wagons are unloaded using various machines such as JCB and Tipplers and even manually. The dispute is in respect of the damages which the railway is claiming on account of the cost of the damage caused to the railway wagons while doing the unloading works. The contention of the petitioner is that no proper inspection has been done while ascertaining the cost of damage.
Learned counsel for petitioner submits that no joint inspection of the wagon before unloading has been done, therefore, the damage which is caused to the wagon while unloading cannot be ascertained. He further submits that the Joint Procedure Order Annexure P/1 has not been followed by the respondents and the joint inspection has not been done while ascertaining the cost of damages. He has also submitted that the arbitration clause contained in the agreement will not operate as bar in entertaining the writ petition in the facts of the present case.
Opposing the petition, learned counsel for respondents submits that the arbitration clause exists in the agreement and the writ petition involves disputed question of facts, therefore, the petitioner should resort to the remedy of arbitration.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the agreement dated 28th January, 2014 Annexure R/1 titled as Private Siding Agreement is not in dispute. Clause 18 of the agreement relates to the responsibility of the petitioner in respect of damage to the railway wagon etc. The clause 34 of the agreement which is the arbitration clause reads as under:-
"34 Arbitration: "In the event of any dispute or difference of opinion between the parties as to the respective rights and obligations of the parties hereunder or as to the true intent and meaning of these presents or any articles or conditions thereof arising such dispute or difference of opinion (except the matters regarding which the decision has been specifically provided for in this agreement) shall be referred to the an arbitral tribunal consisting of atleast 3 members to be appointed by the General Manager, W.C. Railway for the time being, and his decision shall be final conclusive and binding on the parties. For the purpose of this Agreement, the General Manager will mean the head of the W.C. Railway Administration.
If one or more of the arbitrators appointed by the General Manager resigns from his appointment as an arbitrator or vacates his office, or is unable or unwilling to act so for any reason whatsoever or dies, the General Manager will have the power to appoint a new arbitrator to act in his place. Such arbitral tribunal shall be entitled to proceed wi9th the reference from the stage at which it was left by the previous arbitrator.
The arbitral tribunal may from time to time, with the consent of parties xxxxxxx to these presents enlarge time for making and publishing the award."
In view of Clause 34, the petitioner has remedy of approaching for arbitration for settling the dispute in question.
So far as the contention of the learned counsel for petitioner that no factual dispute is involved, therefore, it is not necessary to invoke the arbitration clause, the record reflects that such a contention cannot be upheld because the disputed question of facts are involved in the matter. The petitioner is contending that no prior inspection has been done and no joint inspection has been carried out and no damage to the railway wagon has been caused whereas the impugned orders dated 20th April, 2017 Annexure P/23 states that the joint inspection was done in the presence of Shri [ENTITY] who had refused to sign the joint inspection wagon damage report. Similarly the communication dated 2/3/2017 Annexure P/18 mentions about the joint inspection prior to unloading the wagon and also subsequent to unloading and refusal of the representative of the petitioner in the siding to sign the joint inspection report. Hence, the issue if the joint inspection was done prior to unloading and any loss has been caused to the railway wagon in the process of unloading is a factually disputed issue for which the evidence is required to be led, hence the writ remedy is not a proper remedy in this regard.
Learned counsel for respondents has rightly relied upon the judgment of the supreme court in the matter of [PRECEDENT] wherein after considering the earlier judgments on the point it has been held that:-
"8. A bare perusal of the High Court's judgment shows that there was clear non- application of mind. On one hand the High Court observed that the disputed questions cannot be gone into a writ petition. It was also noticed that essence of dispute was breach of contract. After coming to the above conclusions the High Court should have dismissed the writ petition. Surprisingly, the High Court proceeded to examine the case solely on the writ petitioner's assertion and on a very curious reasoning that though the appellant- Corporation claimed that the value of articles lifted was nearly rupees 14.90 lakhs no details were specifically given. From the counter- affidavit filed before the High Court it is crystal clear that relevant details disputing claim of the writ petitioner were given. Value of articles lifted by the writ petitioner is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under [SECTION] of the [ACT] would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised. (See: [PRECEDENT]).
9. In a catena of cases this Court had held that where dispute revolves round questions of fact, the matter ought not be entertained under [SECTION] of the [ACT]. (See:[PRECEDENT])
10. In the instant case the High Court has itself observed that disputed questions of fact were involved and yet went on to give directions as if it was adjudicating the money claim in a suit. The course is clearly impermissible. (See: [PRECEDENT]; [PRECEDENT] and [PRECEDENT])
11. In [PRECEDENT] it was observed by this Court that the question whether the writ petition was maintainable in a claim arising out of a breach of contract should be answered first by the High Court as it would go to the root of the matter. The writ petitioner had displayed ingenuity in its search for invalidating circumstances; but a writ petition is not an appropriate remedy for impeaching contractual obligations. (See: [PRECEDENT] and The [PRECEDENT]
In [PRECEDENT] the types of cases in which breaches of alleged obligation by the State or its agents can be set up were enumerated. The third category, indicated is where the contract entered into between the State and the person aggrieved in non- statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and in exercise of executive power of the State. The present case is covered by the said category. No writ order can be issued under [SECTION] to compel the authorities to remedy a breach of contract; pure and simple. It is more so when factual disputes are involved.
12. Above being the position the High Court's judgment is clearly unsustainable and is set aside. However, our interference in the matter shall not stand in the way of the writ petitioner seeking any other remedy as is available in law."
Similarly in the matter of [PRECEDENT] it has been held that:-
4. The grievance of the appellant is that the High Court ought not to have gone into seriously disputed questions of fact in its writ jurisdiction. The writ petitioner (respondent herein) challenged the action of the appellant contending that he was prevented by the appellant from working the contract. This was disputed by the appellant. It was submitted before us by reference to the record of an earlier petition under [SECTION] [ACT] filed by the respondent wherein his case was that he was prevented from working the contract by the Truckers' Union acting at the behest of the earlier contractor. In any event, since the facts were seriously disputed by the appellant, and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
Counsel for petitioner has placed reliance upon the judgment of the supreme court in the matter of [PRECEDENT], but there is no dispute to the proposition that alternate remedy is not a bar to exercise the writ jurisdiction in exceptional circumstances, but in the present case no such exceptional circumstances exists.
Similarly counsel for petitioner has relied upon the judgment of the supreme court in the matter of [PRECEDENT] wherein it has been held that an arbitration clause is not a bar to invoke the writ jurisdiction when injustice is caused and rule of law is violated, but in the present case since the factual dispute is involved, therefore, the petitioner cannot be granted the benefit of the said judgment.
In the aforesaid circumstances of the case, I am of the opinion that the writ remedy is not the proper remedy available to the petitioner and the petitioner is required to invoke the arbitration clause or to avail such other remedies as are available in law wherein he can lead evidence and establish the facts. Hence, the writ petition is dismissed, however, with liberty to the petitioner to avail such other remedies as are available in law.
c.c as per rules.
([ENTITY]) Judge vm