1. This writ appeal is directed against the order dated 11.8.2021 passed by the learned Single Judge in WP(C) No.3320 of 2020, whereby the learned Single Judge has dismissed the writ petition filed by the writ appellant herein 2 reserving liberty in favour of the writ appellant to seek the remedy before the arbitration tribunal, which has been sought to be challenged in this writ appeal.

2. Mr.Kishore Bhaduri, learned Senior Counsel with Mr.Anand Dadariya, learned counsel appearing for the writ appellant, would submit that the learned Single Judge is absolutely unjustified in dismissing the writ petition filed by the writ appellant in view of arbitration clause 28 of the agreement asking him to avail the remedy before the arbitration tribunal and in view of decisions of the Supreme Court in the matters of Unitech Limited and others v. Telangana State Industrial Infrastructure Corporation (TSIIC) and others 1 and Radha Krishan Industries v. State of Himachal Pradesh & Ors. 2, it can be held that despite the availability of alternative remedy, the writ petition would be maintainable, as such, the impugned judgment passed by the learned Single Judge deserves to be set aside.

3. On the other hand, Mr.Sunil Otwani, learned Additional Advocate General for the respondents/State, would submit that the learned Single Judge is absolutely justified in dismissing the writ petition filed by the writ appellant on the ground of availability of the remedy before the arbitration tribunal under the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter called as 'Act of 1983').

4. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

5. The short question is involved, whether the learned Single Judge is justified in dismissing the writ petition filed by the writ appellant on the ground of availability of efficacious remedy before the arbitration tribunal constituted 1 2021 SCC Online SC 99 2 (2021) 6 SCC 771 3 under the Act of 1983.

6. The Supreme Court in the matter of Union of India and others v. Tantia Construction Private Limited 3 has clearly held that the constitutional powers vested in the High Court cannot be fettered by any alternative remedy available to the authorities including arbitration. It was observed as under:-

7. Similarly, in the matter of Unitech Limited (supra), the Supreme Court relying upon its earlier decisions has clearly held that the presence of an arbitration clause within a contract between a state instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226 of the Constitution of India. It was observed as under:-

(emphasis supplied)

41. Therefore, while exercising its jurisdiction under Article 226 , the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh in this case, when the foundational representation of the contract has failed. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the 5 refund of its principal."

8. Similarly, in the matter of Radha Krishan Industries (supra), the Supreme Court while taking into note of earlier decisions of the Supreme Court in Whirlpool Corpn. (supra) and Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. And others 6 laid down the principles for maintainability of writ petition as under:-

9. Reverting to the facts of the present case in light of aforesaid judgments of the Supreme Court, it is quite vivid that though the writ petition is maintainable despite the availability of arbitration clause, but the writ appellant has failed to demonstrate any of the exceptions held by their Lordships of the Supreme Court in the matter of Radha Krishan Industries (supra) for maintaining writ petition. Learned Single Judge in para-9 of the impugned order has clearly held that since agreement between the parties contains an arbitration clause in shape of arbitration clause 28 and both the parties are bound by it and granting liberty to the writ appellant to invoke the remedy before the arbitration tribunal constituted under the Act of 1983, the writ petition has been dismissed. After hearing learned counsel appearing for the parties and after going through the records, we are of the considered view that the learned Single Judge is absolutely justified in dismissing the writ petition filed by the writ appellant on the ground of availability of the remedy before the arbitration tribunal under the Act of 1983 as the writ appellant has failed to demonstrate any of the exceptions as noticed hereinabove for maintaining writ petition as held by the Supreme Court in M/s Radha Krishan Industries (supra). We do not find any force in this writ appeal. It deserves to be and is hereby dismissed.

10. At this stage, Mr.Kishore Bhaduri, learned Senior Counsel, would submit that Arbitration Tribunal be directed to expedite the hearing, if it is so filed, before the tribunal. Needless to say, in the event of filing arbitration reference, the Arbitration Tribunal would do well to consider and decide the same in accordance with law expeditiously.