AJN 05-OS-WP(L)942.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.942 OF 2011 M/s. Topway Multitrade. ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. Vineet Naik with Mr. Ajay Patil i/b J.G. Reddy for the petitioner. Mr. V.A. Thorat, senior counsel with Mr. Harinder Toor and Ms. Kavita Anchan i/b M/s. M. V. Kini & Co. for respondent 3. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 5TH MAY, 2011. P.C.:- 1. Not on board. Mentioned in view of urgency. 2. The petitioner is a registered partnership firm. This petition is filed through its partner Mr. Tushar Gogri. The petitioner has prayed for quashing and setting aside of AJN 05-OS-WP(L)942.11 2 the impugned order/notice dated 28/4/2011 terminating the contract of the petitioner in respect of installation of glass protection system on 270 air conditioned buses and display of advertisement thereon. 3. It is necessary to give the gist of the facts. The case of the petitioner is that by a registered Agreement dated 9/1/2010 entered into between the petitioner and respondent 3 - the then General Manager of Brihan Mumbai Electric Supply & Transport Undertaking (for short, “the BEST”), the petitioner was awarded a contract in respect of installation of glass protection system on 270 air conditioned buses and display of advertisements thereon for a period of 10 years on terms and conditions mentioned in the said agreement. 4. On 8/3/2011, officers of respondents 4 and 5 i.e. the Transport Commissioner and the Regional Transport Officer (for short, “the RTO”) respectively inspected the petitioner's bus bearing No.MH-46/J-20 and found that the AJN 05-OS-WP(L)942.11 3 advertisements displayed on the said air conditioned bus are in contravention of provisions of Section 100(2) of the Central Motor Vehicles Rules, 1989. On the basis of the said report, respondent 5 i.e. the RTO passed a detailed order dated 10/3/2011 directing the BEST to take steps to remove all the advertisements displayed on the air conditioned buses within a period of 15 days from the date of the said order. 5. On the basis of the said report dated 8/3/2011 and the order dated 10/3/2011 passed by respondent 5, the BEST issued Show Cause Notice dated 17/3/2011 to the petitioner and suspended the contract for installation of glass protection system for 270 air conditioned buses and display of advertisements thereon with effect from 1/4/2011 and directed the petitioner to remove or deface all advertisements displayed on the air conditioned buses on or before 31/3/2011. 6. The petitioner submitted a detailed reply dated AJN 05-OS-WP(L)942.11 4 25/3/2011 in which the petitioner, inter alia, stated that it was not satisfied with the report of the RTO in respect of the visibility. The petitioner contended that in the interest of justice, it would be proper to appoint an agency like ARAI or any other independent Research Centre to ascertain the visibility. The petitioner stated that the report of an independent agency or authority would be binding on the petitioner. According to the petitioner, in spite of the detailed reply submitted by it, respondent 3 issued termination notice dated 11/4/2011. By the said notice, as per clause 24(ii) of the terms and conditions of the contract as laid down in the agreement dated 9/1/2010, the petitioner was called upon to submit its written explanation within seven days from the date of receipt of the notice. 7. The petitioner accordingly sent reply dated 15/4/2011. The petitioner sent further reply dated 18/4/2011 and 26/4/2011. However, according to the petitioner, ignoring the said replies, the petitioner's AJN 05-OS-WP(L)942.11 5 contract was terminated vide impugned order dated 28/4/2011. Aggrieved by the said termination, the petitioner has approached this court. 8. We have heard Mr. Naik, learned counsel for the petitioner, at some length. Mr. Naik submitted that as per Section 100(2) of the Central Motor Vehicles Rules, 1989, the visibility of glass should be as follows : Visibility of windscreen glass : 70% Visibility of rear window glass : 70% Visibility of side window glass : 50% 9. Counsel submitted that it is the case of the respondents that during the course of inspection, the visibility of the glasses on the buses allotted to the petitioner was found to be below the required mark prescribed under Section 100(2) of the Central Motor Vehicles Rules 1989. Counsel submitted that so far as the windscreen glasses and rear window glasses are AJN 05-OS-WP(L)942.11 6 concerned, the inspection conducted by the respondents revealed that the visibility norms were answered but so far as the side window glasses are concerned, it was found that the visibility was 27%. Thus, it was found to be below the required mark. Counsel submitted that the petitioner has serious reservation about the inspection report. The inspection should have been carried out by an independent agency. A request was made in that behalf by the petitioner in its letter dated 25/3/2011 but it was ignored. Counsel submitted that in the circumstances this is a fit case where this court should stay the termination of the contract and call for a report from an independent agency. Counsel submitted that, in fact, the bus which was inspected was not even allotted to the petitioner. He submitted that in any case, since the inspection of an independent agency is necessary, the arbitrary termination order requires to be quashed and set aside. 10. We have heard Mr. Thorat, learned senior counsel for respondent 3. Relying on the judgment of the Supreme AJN 05-OS-WP(L)942.11 7 Court in Pimpri Chinchwad Municipal Corporation and Ors. v. Gayatri Construction Company & Anr. (2008) 8 SCC 172, counsel contended that inasmuch as there is an arbitration clause in the contract entered into by the petitioner with the respondents, this court should not entertain the present writ petition challenging the said termination order. 11. Having considered the rival submissions, we are of the opinion that it is not possible for us to entertain this petition because it involves several disputed questions of facts relating to termination of a commercial contract which we cannot deal with in our writ jurisdiction. Besides, we find that when the inspection was carried out and panchnama was made, Mr. Tushar Gogri, partner of the petitioner through whom the petition is filed and one Payal Shelke, Manager of the petitioner were present. Panchnama dated 8/3/2011 is annexed to the petition at Ex-E. It mentions their names. It is pertinent to note that at that stage, no grievance was made that the bus which AJN 05-OS-WP(L)942.11 8 was inspected was not allotted to the petitioner. This submission is, therefore, clearly an afterthought. It is also important to note that by order dated 10/3/2011 passed by respondent 5, the BEST was, inter alia, directed to remove the advertisements on the glasses due to lack of visibility below the required mark within 15 days from the date of the order. The said order states that it is an appealable order under Section 89 of the Motor Vehicles Act, 1988 read with Rule 97 of the Maharashtra Motor Vehicles Rules, 1989. However, no appeal has been preferred by the petitioner. Mr. Naik submitted that this order was made available to the petitioner much later, that is, along with impugned order dated 28/4/2011 and in any case the said order states that only the BEST can appeal against the said order. 12. Mr. Thorat, learned counsel for respondent 3 disputed that this order was made available to the petitioner along with the impugned order dated 28/4/2011. He stated that it was served on the petitioner AJN 05-OS-WP(L)942.11 9 along with letter dated 17/3/2011. We do not want to go into this dispute. The fact remains that the said order is an appealable order and no appeal has been preferred therefrom. The contention of Mr. Naik that only BEST can appeal against the said order cannot be entertained. Section 89 of the Motor Vehicles Act, 1988 clearly states that any aggrieved person can prefer an appeal. 13. Besides, we find that in the agreement dated 9/1/2010 entered into by the petitioner with the respondents, there is an arbitration clause. This alternative remedy is also not availed of by the petitioner. In this connection, reliance placed by Mr. Thorat on the judgment of the Supreme Court in Pimpri Chinchwad Municipal Corporation is apt. In that case, the Pimpri Chinchwad Municipal Corporation had terminated the contract awarded to respondent 1 therein. In clause 58 of the agreement entered into by the appellant-Corporation therein with respondent 1 therein, there was an in-house remedy for settlement of disputes. All disputes and AJN 05-OS-WP(L)942.11 10 differences were to be referred to the City Engineer. In spite of this, the High Court had entertained the writ petition. The Supreme Court referred to the relevant judgments on the point and held that the High Court should not have entertained the writ petition. In our opinion, ratio of this case is clearly attracted to the present case. Firstly, though an appeal is provided, the petitioner did not avail of that remedy and secondly, though there is an arbitration clause in the agreement, the petitioner did not avail of that remedy also. Even on merits of the case, we find that the petitioner has no case. 13. The petitioner's representatives were present when the inspection was carried out. The contention that the bus which was inspected was not allotted to the petitioner was not raised at that time. We find no reason to reject the inspection report and disregard the order dated 10/3/2011 passed by the RTO based thereon. In view of AJN 05-OS-WP(L)942.11 11 the above, it is not possible for us to quash the impugned order terminating the contract of the petitioner. The petition is dismissed. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]