WP(C) 1434/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Judgment and order (CAV) The petitioners, by these writ petitions, have challenged the no tice dated 27-03-2009 issued by the General Manager, North Eastern Coal Fields, Coal India Limited (respondent No.3 in both the writ petitions) cancelling the S pot e-Auction for sale of the coal from source tikAk, initiated vide notice date d 16-03-2009, by invoking Clause 11.9 of the general terms and conditions of suc h auction and releasing the earnest money deposit and also praying for issuance of a direction to the respondent authorities to deliver the allotted quantities of coal to them pursuant to the Spot e-Auction held on 27-03-2009. Since in bot h the writ petitions identical reliefs have been claimed based on identical fact s, those are taken up for hearing and disposal together, as agreed to by the lea rned Sr. Counsel for the parties. 2. The Area Sales Manager of North Eastern Coal Fields, Coal India Limited issued a notice dated 16-03-2009 offering 18 (eighteen) rakes of coals f or sale, of which 10 (ten) rakes of UHV exceeding 7099 Kcal/kg grade from source TIRAP and 8 (eight) rakes of UHV 6200-6299 Kcal per/kg grade from the source TI KAK, through online Spot e-Auction, for despatch by Railway, fixing reserve pric e of Rs.3345/- and Rs.3280/-, respectively. The date of online Spot e-Auction w as initially fixed on 23-04-2009, which was subsequently refixed as 27-03-2009. By the said notice, it has also been informed that the online e Auction will be conducted by the service provider, namely M Junction Services Limited. The ter ms and conditions of Spot e-Auction Scheme, 2007 are also applicable in respect of the Spot e-Auction, notice for which has been issued on 16-03-2009. The petit ioners desire to participate in the auction in respect of one rake each, deposit ed requisite earnest money in favour of the service provider and being eligible, participated in such process. The petitioner in WP(C) No.1434/2009 has offered the price of Rs.2280/- per MT and the petitioner in WP(C) No.1436/2009 offered R s.2300/- per MT, grade UHV 6200-6299 Kcal/kg from the source TIKAK. On the date of the auction, the General Manager, the respondent No.3, issued a notice dated 27-03-2009 cancelling the Spot e-Auction for the sale of coal from the source T IKAK invoking Clause 11.9 of the terms and conditions of Spot e-Auction Scheme, 2007, which according to the petitioner was issued giving a back date and after publication of the result of such e-Auction on the website of the service provid er on 27-03-2009 showing allotment of 1 (one) rake in favour of the petitioner i n WP(C) No.1434/2009 and 2 (two) rakes in favour of the petitioner in WP(C) no.1 436/2009 at the rates offered by them. The petitioners, therefore, have challeng ed the said notice dated 27-03-2009 issued by the respondent No.3 basically on t he ground that the contract for allotment of coal in favour of the petitioners h aving been completed on publication of the result of such e-Auction showing allo tment of rakes in their favour, there cannot be any cancellation of such Auction . The petitioners, therefore, also prays for a direction to the respondent autho rities to deliver the allotted quantities of coal to them pursuant to such compl eted Auction held on 27-03-20096 for the sale of coal from source TIKAK. 3. I have heard Mr. D.K. Misra, the learned Sr. Counsel appearing f or the petitioner in WP(C) No.1434/2009, Mr. G.N. Sahewalla, the learned Sr. Cou nsel appearing on behalf of the petitioner in WP(C) No.1436/2009 and Mr. M.Z. Ah med, the learned Sr. Counsel appearing for the respondents. 4. The learned Sr. Counsel appearing for the petitioners referring to the various terms and conditions of the Spot e-Auction Scheme, 2007, more par ticularly Clause 5.1 thereof, has submitted that the service providers, namely M /s M Junction Services Limited, having declared the result of such auction by di splaying the same on their website showing allotment of rakes in favour of the p etitioners at the rates offered by them, the contract has concluded, as the offe rs made by the petitioners have been accepted by such declaration of result on t he website and hence, there cannot be any cancellation of the e-Auction by the n otice dated 27-03-2009 issued by the respondent No.3. According to the learned Sr. Counsel, the impugned notice dated 27-03-2009 has not been issued prior to p ublication of the result of such auction by the service provider on their websit e and was published on the website only on 28-03-2009, which is apparent from th e cancellation notice downloaded from the website of the service provider (Annex ure V to the writ petitions). It has further been submitted that the respondent authorities having decided to sale the coal through online e-Auction in terms of its policy, they cannot without any reasonable justification cancel such proces s by invoking Clause 11.9 of such terms and conditions. The learned Sr. Counsel have submitted that the ground on which such e-Auction has been cancelled is no n existent as the non availability of the railway wagons cannot be the basis for such cancellation. Referring to the arbitration clause in the terms and condit ions, it has been submitted that existence of such clause is not always a bar to entertain a writ petition, as the rule of exclusion of writ jurisdiction by ava ilability of an alternative remedy is a rule of discretion and not one of compul sion. According to the learned Sr. Counsel, since the action on the part of the respondents is arbitrary and such cancellation notice has been issued after the contracts between the parties have concluded, the writ Court should entertain t he writ petitions filed by the petitioners. The learned Sr. Counsel, therefore, submit that the notice of cancellation dated 27-03-2009 be set aside and the re spondents may be directed to deliver the allotted quantities of coal to them pur suant to the concluded contracts for sale of the coal from source TIKAK. In sup port of their contention reliance has been placed on an Apex Court decision in H arbanslal Sahnia & Anr. -Vs- Indian Oil Corporation Ltd. & Ors. reported in (200 3) 2 SCC 107. 5. Mr. Ahmed, the learned Sr. Counsel appearing on behalf of the re spondents has, on the other hand, submitted that the impugned notice dated 27-03 -2009 has been issued by the respondent No.3 before the result of the e-Auction was published by the service provider on their website and hence, the publicatio n of such result by the service provider in their website does not amount to con cluded contract. It has further been submitted that as because the contents of such notice dated 27-03-2009 was posted on the website of the service provider o n 28-03-2009, it cannot be said that the respondent No.3 did not issue the notic e on 27-03-2009. Referring to the averments made in the affidavit-in-opposition , it has further been submitted by Mr. Ahmed that such cancellation was made bec ause of the technical reasons and circumstances beyond the control of the respon dents, namely planned take off could not be materialised owing to low availabili ty of railway wagons which resulted in huge accumulation of value paid pending o rders, particularly in the power sector like NTPC, etc. According to the learned Sr. Counsel, the respondent authority has the power under the terms and conditi ons of such e-Auction, to cancel the sale of coal at any stage without assigning any reason thereof, in view of Clause 11.9 of such terms and conditions. In th e instant cases, according to the learned Sr. Counsel, such cancellation has bee n done because of the reasons, as noticed above, and hence, the action on the pa rt of the respondents cannot be termed as arbitrary being not based on justifiab le ground. Referring to Clause 11.12, Mr. Ahmed further submits that in view of the existence of the Clause for arbitration in the terms and conditions to whic h the parties have agreed to, the present writ petitions wherein the disputed qu estion of fact about the date of issuance of the notice of cancellation has been raised, are not maintainable. According to the learned Sr. Counsel, whether th ere was concluded contract or not and whether such notice of cancellation was is sued prior to publication of the result of such auction by the service provider on their website are all question of facts, which cannot conveniently be determi ned in a writ proceeding and can only be determined in the forum chosen by the p arties, i.e. in an arbitration proceeding, in view of Clause 11.12 of the terms and conditions of such e-Auction. It has further been submitted that such disput ed questions of fact also cannot be decided in the present writ proceedings in t he absence of the service provider, namely M/s M Junction Services Limited, who has not been made party to the present writ proceedings. Mr. Ahmed, therefore, submits that the writ petitions deserve to be dismissed. 6. I have considered the submissions of the learned Sr. Counsel and perused the pleadings of the parties in their respective affidavits as well as the records produced before this Court by the respondents. 7. The terms and conditions of Spot e-Auction Scheme, 2007, which a re also applicable to the e-Auction in question, initiated by the respondent aut horities vide notice dated 16-03-2009, stipulates issuance of notification for e -Auction through display on the company’s notice board and putting the same on c ompany’s website for wide publicity. It also requires prospective buyer to get itself/himself registered with the service provider, namely M/s M Junction Servi ces Limited, appointed for that purpose, for rail despatch. The details of the bidding process have also been stipulated in Clause 4 of such terms and conditio ns. Clause 5 stipulates post e-Auction process. Clause 5.1 provides that each successful bidder will be intimated through e-mail/SMS by the service provider o n the same date after the closure of the e-Auction. It further provides that it will be the responsibility of the bidder to personally see and download the resu lt displayed on the website, on the same date after closure of e-auction. Claus e 5.2 requires the successful bidders to deposit the coal value within a period of 7 (seven) working days, after the date of closer of e-Auction. Clause 11.9 em powers the respondents as well as its service providers to cancel the sale of co al under the e-Auction from any source/location in part or whole at any stage at its sole discretion without assigning any reason thereof and in such case, no p arty shall have any right whatsoever to raise any claim in that regard on that c ount. Clause 11.12 requires the bidder/buyer to claim arbitration, in case of a ny dispute, which is to be dealt with in terms of the provisions contained in Ar bitration and Conciliation Act, 1996. 8. In the instant cases, the notice of the Spot e-Auction was issue d by the respondent authorities on 16-03-2009 offering for sale of 8 (eight) rak es (2750 MT each) of UHV 6200-6299 Kcal/kg grade coal for despatch by rail, fixi ng Rs.2280/- as the reserve (basic) price. Such online e-Auction was to be cond ucted by the service provider, namely M/s M Junction Services Limited. By the s aid notice, the date of online Spot e-Auction was initially fixed as 24-03-2009, which was, however, subsequently been refixed as 27-03-2009. The petitioners in both the writ petitions, being WP(C) No.1434/2009 and WP(C) No.1436/2009, havin g registered their names with the service providers as required under the terms and conditions, offered their price for 1 (one) rake each of the aforesaid grade of coal. The service provider on their website declared the result of such e-A uction on 27-03-2009 notifying that 1 (one) rake of coal has been allotted to th e petitioner in WP(C) No.1434/2009 and 2 (two) rakes of coal in favour of the pe titioner in WP(C) No.1436/2009. It is, however, the pleaded case of the petitio ner in WP(C) No.1436/2009 that he has submitted his bid for only 1 (one) rake of coal. The said process of auction in respect of UHV 6200-6299 Kcal/kg grade of coal from source TIKAK has been cancelled by the respondent authority, namely r espondent No.3, vide notice dated 27-03-2009. 9. The case of the petitioners, as noticed above, is that the impug ned notice dated 27-03-2009 is back dated and has infact been issued after publi cation of the result of e-Auction by the service provider on their website, whic h results in concluded contract and, therefore, the cancellation notice is inval id. The further case of the petitioner, as noticed above, is that in any case, the ground on which the e-Auction has been cancelled is arbitrary being not base d on justifiable ground. The contrary case of the respondents is that the impu gned notice dated 27-03-2009 has been issued prior to publication of result by t he service provider on their website, for the reason beyond the control and henc e, publication of such result by the service provider would not amount to any co ncluded contract and such cancellation also cannot be termed as arbitrary. 10. The writ petitioners have based their claim in the present writ petitions praying for setting aside the notice of cancellation dated 27-03-2009 issued by the respondent No.3 and also for directing the respondents to deliver the quantities of coal allotted in their favour, on the pleas of concluded contr act and arbitrary action. Such pleas, however, have been disputed by the respon dents in their affidavit. 11. It appears from the affidavit filed by the respondents as well a s the materials made available before this court that the respondent No.3 has is sued the impugned notice of cancellation dated 27-03-2009 on the plea that the p lanned take off could not be materialised owing to low availability of railway w agons, which resulted in huge accumulation of value paid pending orders, particu larly in the power of sectors like NTPC, etc, which, if correct, would constitut e valid ground for cancellation of the process. The question whether the planne d take off could not be materialised due to low availability of railway wagons, which in turn resulted in huge accumulation of value paid pending orders, is a q uestion of fact, which cannot conveniently be determined in the writ proceedings , the same being a disputed question of fact. So also the question as to whethe r the impugned notice of cancellation dated 27-03-2009 has been issued prior to publication of the result by the service provider on their website or not is als o a disputed question of fact. Posting of such intimation of cancellation by th e service provider on their website on 28-03-2009, cannot be the sole basis for recording a finding that the impugned notice of cancellation dated 27-03-2009 a back dated and was issued after publication of such result on the website of the service provider and has not been received by them prior to publication of such result. The effect of such notice of cancellation dated 27-03-2009 issued by th e respondent No.3, on the result posted by the service provider on their website on 27-03-2009, is also required to be gone into on the basis of the facts to be ascertained in an appropriate proceeding. Only after ascertaining such facts in an appropriate proceeding, finding can be recorded whether there is a concluded contract and not otherwise. The facts involved in the present cases being disp uted, as noticed above, such disputed question of fact cannot conveniently be de cided in the writ proceedings, that too in the absence of the service provider, who is not a party to the present writ proceedings. 12. It appears from Clause 11.12 of the terms and conditions of Spot e-Auction Scheme, 2007 that parties have agreed to refer to arbitration, any di spute between the bidder/ buyer and respondents. The parties having agreed for resolving their disputes by arbitration, they have to take recourse to such arbi tration. There is no dispute to the proposition of law as enunciated by the Ape x Court in Whirlpool Corporation -Vs- Registrar of Trade Marks reported in (1998 ) 8 SCC 1, which has been referred to and relied upon in Harbanslal Sahnia (supr a), that the rule of exclusion of writ jurisdiction by availability of an altern ative remedy is a rule of discretion and not one of compulsion. In an appropria te case, in spite of availability of alternative remedy, the High Court may stil l exercise its jurisdiction in at least three contingencies, namely (i) where th e writ petitioner seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenge d. 13. As discussed above, the facts on the basis of which the writ pet itioners have claimed relief in the present writ petitions are all disputed by t he respondents. The question as to whether there is any concluded contract; whe ther the notice of cancellation dated 27-03-2009 has been issued after the publi cation of the result by the service provider on their website; whether the plann ed take off could not be materialised owing to low availability of railway wagon , resulting in huge accumulation of value paid orders, which is the basis for ca ncellation of the e-Auction process by the impugned notice dated 27-03-2009, are all disputed questions of fact, which as observed above, cannot conveniently be determined in a writ proceeding and can only be determined by detailed examina tion of the evidences to be produced by the parties in an appropriate proceeding s. Unless finding of facts are recorded on such issues, the reliefs claimed in the writ petitions cannot be granted. 14. In view of the aforesaid discussions, I am of the view that the reliefs claimed by the writ petitioners in the present writ petitions cannot be granted. The writ petitions are, therefore, dismissed without any order as to t he cost. The writ petitioners are at liberty to take appropriate steps for reso lving their dispute by way of arbitration in terms of Clause 11.12 of the terms and conditions of Spot e-Auction Scheme, 2007.