IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 RP.No. 924 of 2009(F) --------------------- IN WPC.21697/2009 Dated 06/08/2009 .................... REVIEW PETITIONER(S): ---------------------- 1. THE RAILWAY DIVISIONAL MANAGER (COMMERCIAL), PALGHAT DIVISION, SOUTHERN RAILWAY, PALGHAT-678 002. 2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF RAILWAYS, NEW DELHI. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): --------------- E.K.ABDUL HAMEED, IYYAKKATTIL HOUSE, P.O.MAYANAD, KOZHIKODE-673 008. ADV. SRI.C.P.MOHAMMED NIAS THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- R.P.924/2009 in W.P.(C).21697/2009 -------------------- Dated this the 19th day of October, 2009 ORDER The Divisional Railway Manager (Commercial), Palakkad Division, Palakkad, and the Union of India represented by its Secretary, Department of Railways, the respondents in the writ petition have come up with this petition for review. Writ petition was filed by the respondent herein challenging an action taken by the Railways intimating that his contract has been terminated and also invoking the bank guarantee furnished by the writ petitioner by way of security deposit effected at the time of execution of Ext.P3 agreement. 2. As is evidenced by the judgment, I had taken note of the submission made by the learned Standing Counsel for the Railways, who had brought to my notice clause 64 of the general conditions of the contract which provided for an arbitration in the event of a dispute between the parties as to the construction and operation of the contract. I had observed that since factual disputes are involved and resolution of the same will require evidence on both sides, and since there is an arbitration clause in the general conditions, the disputes R.P.924/09 2 between the petitioner on one hand and Railways on the other, arising out of Exts.P4, P6, P7 and P9 shall be referred to a competent Arbitration Tribunal. Since the term of agreement, Ext.P3, is scheduled to expire on 31.12.2009, I had also directed that the petitioner be permitted to continue to operate as a licensee under Ext.P3 till 31.12.2009, but confining his operation only to the parking stand comprising the area scheduled to Ext.P3 and also subject to a condition that he shall continue to pay the instalments due under Ext.P3, till 31.12.2009. 3. The judgment was delivered on 6.8.2009 and thereafter a Contempt of Court case, COC.1098/2009 was filed by the petitioner alleging that respondents have willfully disobeyed the directions issued by this Court by not permitting the writ petitioner to operate as a licensee and also inducting a third person, after the judgment. 4. It is on 22.9.2009 that the review petition was filed alleging that the arbitration clause, that governs the present case is clause 29 in Ext.P3 agreement that it contemplates a resolution of the dispute by the Railways Divisional Manager in R.P.924/09 3 the first instance and that clause 64 of the general conditions applies only in relation to other contracts and not the contract in question. It is also contended that the petitioner's contract had been terminated on 7.4.2009 and that the third person had been temporarily engaged even prior to the institution of the writ petition on 1.8.2009 or the pronouncement of the judgment on 6.8.2009. 5. A counter affidavit has been filed by the respondent and a reply affidavit has also been filed by the review petitioner. I heard Mr.M.C.Cherian, learned senior Standing Counsel and Mr.Mohammed Nias, learned counsel for the writ petitioner. 6. The contention rested on the basis of Clause 29 of Ext.P3 agreement which contemplates a resolution of the dispute by the Divisional Railway Manager in the first instance seems to be well conceived. I heard Mr.Nias also in this regard. Accordingly, the direction to refer the disputes arising from Exts.P4, P6, P7 and P9 to the competent Arbitration Tribunal, as contained in paragraph 6 of the judgment shall be treated as a direction to the Divisional Railway Manager, Salem, instead of the Arbitration Tribunal. I also record the submission made by R.P.924/09 4 Mr.Cherian that disputes arising from Exts.P4, P6, P7 and P9 shall stand referred to the Divisional Railway Manager. 7. But I am not inclined to review the direction that the petitioner shall be permitted to continue to operate as a licensee under Ext.P3 till 31.12.2009. After all, even according to the review petitioners another person has been engaged as a licensee on a temporary basis and nobody was engaged on a permanent basis as a licensee either on the date of the judgment or even now. Therefore, it is upto the Railways to ensure compliance of the directions issued by this Court. The other conditions imposed on the petitioner to enable him to operate as a licensee till 31.12.2009 shall remain intact. Review petition is disposed of as above. V.GIRI, Judge mrcs