WP(C) 1658/2003 BEFORE HON’BLE MR JUSTICE B.P.KATAKEY The petitioner, who is a class-I contractor by the present petition has prayed for a direction to the respondent railways to pay a sum of Rs.1,24, 202.7 3 (Rupees one lakh twenty four thousand two hundred two and paise seventy three only), which was deducted from the amount claimed under the bill raised by him, for undertaking contract works at the New Bongaigaon i.e. internal road and bou ndary wall around the proposed Kendriya Vidyalaya with playground including 2 no s. of iron gates and earth work, in terms of the decision reflected in the memor andum dated 4.1.1999 issued by the Divisional Engineer-II, NF Railways, Alipurdu ar Junction. I have heard Mr MU Mahmud, learned counsel for the petitionr as well as Mr S. Sarma, learned standing counsel for the NF Railways appearing for the resp ondents. The case of the petitioner in the present petition is that pursuant to t he quotation dated 20.2.1998 invited for the aforesaid works, he submitted his o ffer which was accepted by the railways and thereafter an agreement was entered into between them on 29.3.1998 with the condition that the earth for the purpose of filling has to be extracted from the patta land and not from the railways la nd. According to petitioner, he has completed the works allotted to him by extra cting the required earth from the neighbouring patta land. The further case of t he petitioner is that the railways thereafter raised a dispute to the effect tha t the required earth was not extracted from the patta land but was extracted fro m the railways land, to which though he replied, an amount of Rs.1,24, 202.73 (R upees one lakh twenty four thousand two hundred two and paise seventy three only ) was with-held from payment. It has further been contended that in proof of his contention before the railways that the required earth was extracted from the p atta land, the concerned Assistant Settlement Officer informed the latter about the same on request being made. It has also been contended that from the joint-s urvey conducted on 20.5.1998, it is evident that the earth was extracted from th e patta land. Although no affidavit-in-opposition is filed, referring to the averments made in the writ petition and the annexures appended therewith, learned standin g counsel for the railways has submitted that unless the dispute as to whether t he earth was extracted from the patta land or from the railways land is resolved , no direction can be issued by the Court for payment of any amount. It has furt her been submitted that in the general terms and conditions of the contract, whi ch is applicable in the case at hand, there is a provision for arbitration and a s such, the petitioner, instead of invoking the jurisdiction under Article 226 o f the Constitution of India, ought to have prayed for arbitration to resolve the factual dispute. It appears from the averments made in the writ petition that though the aforesaid work was allotted to petitioner, a dispute arose between the petitione r and railways relating to the extraction of earth, which according to petitione r, was extracted from patta land and according to the respondents was extracted from railways land. In support of this contention, the petitioner has annexed a sketch map signed by the officers of the railways and the communication dated 27 .8.1998 issued by the concerned Assistant Settlement Officer to the Assistant En gineer(I), N.F.Rly, New Bongaigaon pursuant to the railway’s letter dated 4.5.19 9. From these documents it is not possible to conclusively hold that the petitio ner had extracted the required earth from the patta land and not from the railwa ys land, because the sketch map does not indicate the extraction of earth, and t he communication issued by the Assistant Settlement Officer is also based on doc uments produced by the petitioner. Unless this factual aspect of the matter is d ecided, which cannot conveniently be done in a writ proceeding, no direction as prayed for in the present writ petition can be issued. It is not in dispute that there is an arbitration clause in the general terms and conditions of contract. Therefore, the petitioner is required to appro ach the railways authority seeking resolution of the dispute by way of arbitrati on. In case such approach is made, the respondent railways will take necessary a ction relating to the appointment of arbitrator within a period of three months there-from. The writ petition stands disposed of accordingly. No costs.