Jurisdiction of the High Courts can be invoked if there is no alternative remedy for the petitioner – High Court of Sikkim

HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 W.P.(C) No.221 M S LINKWELL TELESYSTEMS PVT. LTD. VERSUS PETITIONER THE STATE OF SIKKIM & ORS. RESPONDENTS Date: 09.06.2021 THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE For Petitioner Mr. Sajal Sharma Advocate. Mr. Sudesh Joshi Additional Advocate Government Advocate. Gyaltsen For Respondents R 1 & R 2 R 3 O R D E R1. Learned Additional Advocate General for State Respondents No.1 and 2 on advance Notice. 2. Heard Learned Counsel for the Petitioner at length. Briefly the case of the Petitioner is that vide Agreement dated 04.05.2017 the Petitioner was awarded the Contract for the purpose of supply and maintenance of POS Devices POS application installation maintenance integration with the TPDS Software and Automation of Fair Price Shops of the 1421 Fair Price Shops in Sikkim. As per Clause 2 of the said Agreement the Petitioner was to adhere to the Request for Proposal Guidelines and the Service Level Agreement also formed a part of the Agreement. Clauses 2 and 8 of the Agreement were to be read together to determine the rights and liabilities of the parties. 1 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 Clause 7.9 of the RFP contained the Arbitration Agreement as defined under Section 7 of the Arbitration and Conciliation Act 1996. The relevant portion of Clause of 7.9 of the RFP inter alia reads as under “7.9. Resolution of Disputes. FCS&CA Department and the successful bidders shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the contract. Any dispute or difference whatsoever arising between the parties to this Contract out of or relating to the meaning scope operation or effect of this Contract or the validity of the breach thereof which cannot be resolved shall be referred to a sole Arbitrator to be appointed by mutual consent of both the parties herein. If the parties cannot agree on the appointment of the Arbitrator within a period of one month from the notification by one party to the other of existene of such dispute then the Arbitrator shall be nominated by the Secretary Law Department Government of Sikkim “Law secretary”). The provisions of the Arbitration and Conciliation Act 1996 will be applicable and the award made thereunder shall be final and binding upon the parties hereto subject to legal remedies available under the law. Such differences shall be deemed to be a submission to arbitration under the Indian Arbitration and Conciliation Act 1996 or of any modifications rules or re enactments thereof. The arbitration proceedings will be held at Gangtok Sikkim India.” The work was to be taken up by the Petitioner in a phased manner as per the terms and conditions specified in Order No.1804 FCS&CA dated 29.03.2017. The Petitioner commenced the works accordingly. 2 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 By a Letter dated 25.05.2020 addressed to the State Respondent No.2 by the Petitioner the Petitioner raised a Bill of Rs.3 65 01 842.00 only and requested the State Respondent No.2 to release the pending payment within seven days to enable them to run the project besides informing them that the Petitioner may not be able to manage operations beyond 01.06.2020 unless the payments were made over to them for the Bills raised. From the month of June 2020 the Petitioner stopped all works granted to them vide the Contract mentioned That the State Respondent No.2 issued Show Causebearing No.753 F&CSD dated 11.01.2021 reminding the Petitioner that the State Respondent No.2 had released a sum of Rs.1 44 87 880.00 only in March 2017 in favour of the Petitioner as mobilization advance. The Show Cause also stated that from the month of June 2020 without informing the State Respondents No.1 and 2 the Petitioner stopped providing their services resulting in a complete halt in the Public Distribution System through EPOS Machine at Fair Price Shops. That further the unilateral suspension of services is ultra vires the Service Level Agreement. That the discontinuance of services by the Petitioner caused a set back to the State Respondents No.1 and 2 for timely 3 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 implementation of the One Nation One Ration Card Scheme hence they were to explain as to why the Agreement entered on 04.05.2017 should not be terminated. By a Letter also of the same date i.e. 11.01.2021 Annexure 11) the State Respondent No.2 agreed to release payments which were due to the Petitioner in a phased manner. It is the Petitioner‟s case that on 16.01.2021 the response to the Show Cause was given by them. Despite the response to the Show Cause the services of the Petitioner were terminated vide Letter bearing No.801 F&CSD 2021 dated 22.01.2021. Having thus terminated the services of the Petitioner the Respondent No.2 on 02.02.2021 issued “Notice Inviting E Tender” from eligible Bidders for the same works that had earlier been awarded to the Petitioner i.e. Automation of Fair Price Shops in Sikkim. Pursuant to the E Tender the Respondent No.3 was awarded the Contract and Work Order issued on On 24.04.2021 the Petitioner was before the Learned Commercial Court East Sikkim at Gangtok seeking reliefs under Section 9 of the Arbitration and Conciliation Act 1996 the prayers being “i. Kindly issue an ad interim ex parte injunction order to restrain the Respondent from accepting any bid in the Notice Inviting E Tender dated ii. Kindly issue an order of injunction to restrain the Respondent from accepting any bid in relation to the Notice Inviting E Tender dated 02.02.2021 until the 4 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 conclusion of the determination of the controversy between the parties by an Arbitrator. iii. Kindly pass an order quashing the Show Cause Notice bearing No.753 F&CSD dated 11.01.2021. iv. Kindly pass an order quashing Notice of Termination of Service issued by the Secretary Food No.801 F&CSD 2021 dated 22.01.2021. v. Any other order orders that this Hon’ble Court deems fit to pass in the interests of justice.” The reliefs so claimed supra are similar to the prayers made before this Court. Vide an ex parte ad interim Order dated 27.04.2021 the Learned Commercial Court restrained the State Respondent No.2 herein the Secretary Food and Civil Supplies Department who was the Respondent therein from accepting any Bid in connection with the E Tender floated by them on 02.02.2021. Later after hearing both parties by a subsequent Order dated 27.05.2021 the Learned Commercial Court vacated its earlier ex parte ad interim Order dated 27.04.2021. xviii) Learned Counsel for the Petitioner submits that subsequent to the Order dated 27.05.2021 the Petitioner invoked the Arbitration Clause of the Agreement dated 04.05.2017 and sought for appointment of an Arbitrator. The suggested Arbitrator was not agreeable to the State Respondent No.2 and hence further steps in this context are being taken and the process is underway. Having heard and considered the facts placed before this Court admittedly the Petitioner did not impugn the Letter dated 22.01.2021 terminating the Contract. It is also 5 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 admitted that the Petitioner of their own accord stopped the works awarded to them vide the Agreement dated 04.05.2017 from the month of June 2020. Pursuant to the Petitioner having stopped the works the Show Cause Notice dated 11.01.2021 was issued following which the Contract between the Petitioner and the State Respondent No.2 stood terminated on 22.01.2021. Learned Counsel for the Petitioner canvassed the contention that the E Tender dated 02.02.2021 was not assailed as the Petitioner had already written a Letter dated 30.01.2021 to the State Respondent No.2 expressing their willingness to restart the project by mobilizing funds from other projects and internal fund adjustments but sought an assurance from the State Respondent No.2 that pending payments would be cleared. In the interim the Contract came to the awarded to a third party. The Petitioner approached the Learned Commercial Court on 24.04.2021 and is before this Court by way of filing the instant Writ Petition on 31.05.2021 with prayers which are in sum and substance similar in both Courts. 5. It may relevantly be stated here that this Court is aware that the existence of an Arbitration Clause would not divest the High Court of its jurisdiction under Article 226 of the Constitution neither is the exercise of Writ jurisdiction under Article 226 in a contractual matter ruled out. However this jurisdiction is invoked when there is no efficacious alternative remedy for the Petitioner. 6 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 6. The Hon‟ble Supreme Court recently in Bhaven Construction through Authorised Signatory Premjibhai K. Shah vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Another1 referred to the ratio in Nivedita Sharma v. Cellular Operators Association of India2 and inter alia observed as follows “17. In any case the hierarchy in our legal framework mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India 2011) 14 SCC 337 this Court referred to several judgments and held: “11. We arguments submissions. There cannot be any dispute that the power of the High Courts to issue directions orders or writs including writs in the nature of habeas corpus certiorari mandamus quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India 3 SCC 261. However it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution the High Court can entertain a writ petition against any order passed by or action agency instrumentality or any public authority quasi judicial body authority and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather it is settled law that when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation.” emphasis supplied) the procedure established under 18. It is therefore prudent for a Judge to not exercise discretion to allow enactment. This power needs to be exercised in exceptional rarity wherein one party is left remediless under the statute or a clear „bad faith‟ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.” 7. In light of the detailed discussions that have emanated supra and in view of the obtaining facts and 1 2021 SCC OnLine SC 8 214 SCC 337 7 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 circumstances in the instant matter as reflected hereinabove I am of the considered opinion that the Petitioner has failed to put forth any exceptional circumstances for invoking the Writ jurisdiction of this Court under Article 226 of the Constitution. 8. The Writ Petition is accordingly dismissed and disposed of. 9. Applications filed along with the Writ Petition if any also stand disposed of. ml ds Approved for reporting : Yes 8 | P a g e 

Summary: The jurisdiction of High Courts under article 226 is applicable only when the other available solutions have been exhausted or are unavailable. Such a power must be exercised only in exceptional circumstances and the discretion of the judges must be within the procedure established. This was upheld by the Hon’ble Mrs. Justice Meenakshi Madan Rai saying, “this Court is aware that the existence of an Arbitration Clause would not divest the High Court of its jurisdiction under Article 226 of the Constitution, neither is the exercise of Writ jurisdiction under Article 226 in a contractual matter ruled out. However, this jurisdiction is invoked when there is no efficacious alternative remedy for the Petitioner” in M/S Linkwell Telesystems Pvt. Ltd. Vs. The state of Sikkim and others [W.P.(C) No.23 of 2021].   The brief facts of the case are the petitioner was allotted the contract for fair price shops in Sikkim. In April, the petitioner sent a notice to the respondents to release funds for the operations. From June, the petitioner paused all the work. The respondents issued a show cause against him citing that the funds had been released in the month of march itself. Aggrieved by this unilateral suspension of services by the petitioner, the respondents terminated the services of the petition and allocated it to a third party. The petitioner appeared before the high court to get such orders and notices quashed. 
After listening to both the parties, the learned judge observed that clause 7.9 of the contract between both the parties talked about resolution of disputes before an Arbitrator in accordance with the rules of the Indian Arbitration and Conciliation Act, 1996. In Nivedita Sharma v. Cellular Operators Association of India [(2011) 14 SCC 337], the court held that, “However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy”. Relying on the judgement abovementioned and the facts and circumstances of the case, the court dismissed the petition on the ground that there are other alternate remedies available and no exceptional circumstance has been put forth.
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