IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20427 of 2008 Date of decision: 22nd October, 2009 M/s Skylark Entertainments and another … Petitioners Versus Commissioner, Ambala Division and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Pritam Saini, Advocate for the petitioners. Mr. Sanjay Chauhan, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner, M/s Skylark Entertainments participated in an auction for running an entertainment service in Lord Mahavir Municipal Park. The terms and conditions announced before the auction have been annexed as Annexure P-1). The successful bidder had to deposit advance money of Rs.1.00 lakh. The term of lease/license was five years. Condition No.19 stated that the contractor will not sublet the park and will not allow any hawkers or stall to be installed inside the park and if he allows it, the contract will be terminated without any written notice. Condition No.25 of terms and conditions is reproduced below: “25. If any dispute arises out between the parties then Deputy Commissioner will be the sole arbitrator and his decision will be binding upon both the parties.” The petitioner made the bid and was successful. He was permitted to run the park and he had to deposit Rs.42,000/- per month as monthly rent. The agreement of lease has been annexed with the present Civil Writ Petition No.20427 of 2008 petition as Annexure P-3. This agreement also contains condition No.23, which reads as under: “23. If any dispute arises out between the parties then Deputy Commissioner will be the sole authorities and his decision will be binding upon both the parties.” After the agreement was arrived, a notice regarding cancellation of lease was issued by the Executive Officer, Municipal Council, Ambala City. The notice is annexed with the petition as Annexure P-6. In the notice, it was stated that the petitioner had made alterations in the park without the permission of the Municipal Council, he had fixed the rates for visiting to mini zoo in the park without the permission of the Municipal Council, he had not made any arrangements to depute any gardener or sweeper to clean the park, he had demolished the old cycle stand and room of chowkidar and that he had constructed boundary wall and thus violated the terms and conditions of the auction. The petitioner filed his reply (Annexure P-7). Municipal Council, Ambala City, on 21st June, 2006, vide Annexure P-8, cancelled the contract. The petitioner filed a suit for permanent injunction, restraining the Municipal Council not to dispossess him. The civil suit was disposed of with direction that the petitioner will not be dispossessed, except in due course of law. To comply with this mandate of the Civil Court, the Municipal Council, Ambala City filed an application under the Public Premises Act. The SDO (Civil) cum Collector, Ambala, vide Annexure P- 12, ordered eviction of the petitioner. In the Court of SDO (Civil) cum Collector, Ambala, the authority under the Public Premises Act, petitioner examined 14 witnesses. The Municipal Council also led the evidence. The authority under the Public Premises Act came to the conclusion that cancellation of the contract had not been assailed by the petitioner in any 2 Civil Writ Petition No.20427 of 2008 proceedings, therefore, same having attained finality, petitioner is liable to be evicted. Aggrieved against the same, petitioner filed an appeal. The appeal was also dismissed vide order (Annexure P-13). Counsel for the petitioner, appearing in this Court, states that termination of the contract was void ab-initio, as no opportunity of hearing was afforded to the petitioner and therefore, the order (Annexure P-8), whereby the contract was cancelled, be quashed. The petitioner had filed reply to the show cause notice vide Annexure P-7 and thereafter, contract was cancelled, even though for the sake of argument, contention of the petitioner is accepted, as per the terms and conditions of the auction and the agreement, remedy vested in the petitioner to invoke arbitration proceedings. The question, which arise for consideration of this Court, is that if an instrumentality of the State enters into a contract and there is specific provision that the parties can approach the Arbitrator, can present writ petition be pursued ? To answer this question, counsel for the petitioner has cited no judicial precedent, rather he moulded the argument and submitted that the petitioner had incurred a cost of Rs.25.00 lakh, created necessary infrastructure in the park and have been paying Rs.42,000/- per month regularly, therefore, great financial loss has been caused to him. A contract, if not taken to the logical conclusion, vest right in the aggrieved to avail remedy of seeking damages. For redressal of this grievance, there is a specific provision in the contract that petitioner can invoke arbitration proceedings. He could have also assailed the contract, being bad, before the Arbitrator. Instead of following right course available to the petitioner, he has rushed to this Court by filing present writ petition. This Court is of the view that contractual obligation, breach of the same 3 Civil Writ Petition No.20427 of 2008 and the consequences thereof cannot be determined by this Court, once there was a specific provision to invoke the Arbitration Clause. Hence there is no merit in the present petition and the same is dismissed with no order as to the costs. Counsel for the petitioner submits that he may be allowed to approach the Arbitrator. Petitioner may do so in accordance with the provisions of law. Any observation made herein shall neither vest any right in the petitioner nor eclipse the same. [KANWALJIT SINGH AHLUWALIA] JUDGE October 22, 2009 rps 4