Sh. Rajesh Kumar vs General Manager, Dms
2002 Latest Caselaw 790 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner has filed the present writ petition seeking a writ in the nature of certiorari to quash the order, passed by the respondent transferring the allotment of booth No. 395-396 to booth No. 737. Petitioner had been selected as a Concessionarie for selling milk and milk products from milk booth No. 1217 located at Karam Pura, Moti Nagar, New Delhi. As per the petitioner this was a milk both working day two hours a day. The agreement was initially for a period of one year renewable on mutual basis. It is stated that the petitioner's allotment from the booth at Karam Pura, Moti Nagar was changed to 395-396 at Khanna Market with one Sh. Nitin Bhanot, who had requested for a change. Petitioner was also permitted to sell milk for the full day as also milk products. Petitioner claims to have spent substantial money on renovation of milk booth and because of his efforts the sale at the milk booth picked up.

2. It is claimed that on 17.1.2002 all of a sudden, officers of respondent slapped an office order dated 15.1.2002 bearing No. 7-3(818)/199-V, asking the petitioner to vacate the booth forthwith. No reason was disclosed to the petitioner. Respondent had threatened the petitioner that he would be forcibly evicted. It is alleged that one Mr. Zha, who was operating Depot. No. 2567-68 had been allotted Depot No. 395-396. The said Mr. Zha is being favored by selected officers. Petitioner's concessionairship was transferred to Depot No. 737 at Rajinder Nagar, New Delhi. Petitioner thereupon filed the present writ petition relying on the order passed by this Court in a connected CW. No. 1452-2001 titled Sh. Bishamber Dayal Gupta v. General Manager, DMS. Show cause notice was issued in the writ petition and vide order dated 3.3.2002 status quo was directed to be maintained. Petitioner vide order dated 18.1.2002 was permitted to implead the party to whom the depot at Patel Nagar was sought to be allotted. CM.1557/2002, an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), has been moved by the General Manager, DMS, pointing out that there is an arbitration agreement between the parties and seeking reference of disputes to arbitration. Reply to the said application has been filed.

3. Learned counsel for the petitioner, Mr. S.S. Gulati, who was also the petitioner's counsel in CW. No. 1452-2001. has urged the same grounds in support of the writ petition. It is urged that the action of the respondent is a malafide one. The agreement between the parties does not provide for transfer of the booth from the allottee to another. The said action, beyond the term of the contract, being a malafide act, is assailable in writ jurisdiction. It is also urged that there was no dispute between the parties.

4. The existence of the arbitration agreement between the parties in the following terms is not denied:-

"All disputes and differences arising out or in any way touching or concerning to the agreement, whatsoever shall be referred to the Sole Arbitration of the General Manager, Delhi milk Scheme, or his nominee. It will be no objection to any appointment that the General Manager, or the person appointed by him is a Government servant that had to deal with the matters to which this agreement relates and that in the course of his duties, as such Government servant he had expressed view all or any of the matter in disputes or differences. The award of the General Manager, Delhi Milk Scheme or the Arbitrator so appointed shall be final and binding on the parties to this, agreement."

The agreement is couched in very wide terms and would cover any dispute or difference arising out of or even touching or concerning the agreement. The challenge to the transfer of milk booth would fall within its ambit.

5. Learned counsel for respondent No.1 has urged that the relief claimed by the petitioner is inextricably linked up with the agreement dated 23.3.2000, which contains the arbitration agreement. Respondent No.1 also claimed that the inspection carried out by it revealed that the petitioner was not observing the various terms and conditions for selling unauthorised articles of food, not observing the time of opening and closing of the depot. Respondent No.1 in view of the breaches could have terminated the agreement but look a lenient view of the matter. Learned counsel submits that in these circumstances, parties be directed to be referred to arbitration in terms of the agreement contained in the arbitration agreement dated 23.3.2000. This is clearly a case, where the post contractual relationship between the parties is governed by the agreement and the arbitration agreement contained therein. The requirements for invocation of Section 8 of the Act are clearly fulfillled.

6. Respondent No. 2 has also filed its counter affidavit in opposition to the writ petition. Learned counsel, Mr. Ritesh Singh, submits that respondent No. 2 is a physically handicapped person with 70% disability, who has been allotted the booth. Respondent No. 2 had accepted the allotment and third party interest have also come into being. The answering respondent has handed over the booth No. 2567-68 to respondent No. 1. Respondent No. 1 is left bereft of any depot or vacation.

7. Having noticed the rival contentions, one thing is clear that there is a contract between the parties, having an arbitration agreement, which governs the relationship between the parties, as regards the allotment and functioning of the milk booth. Section 8 of the Act would operate as a bar to exclude entertainment of the writ petition. The Supreme Court in Kalpana Kothari (Smt.) v. Sudha Yadav (Smt.) and Ors. has described Section 8 of the Act as all comprehensive provision of mandatory character enabling the parties to have the matter related to the disputes referred to arbitration in terms of the arbitration agreement.

In P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors. , the Supreme Court has noted that the requirement to refer the disputes to arbitration under Section 8 is peremptory. The following observation from the said judgment may be usefully reproduced:-

"The language of Section 8 is peremptory. It is, therefore, obligatory for the Court to refere the parties to arbitration in terms of their arbitration agreement. Nothing remains to be decided in the original action a or the appeal arising there from. There is no question of stay of the proceedings till the arbitration proceedings conclude and the award becomes final in terms of provisions of new Act. All the rights, obligations and remedies of the parties would now be governed by the new Act, including the right to challenge the award. The Court to which the party shall have recourse to challenge the award would be the Court as defined in Clause (e) of Section 2 of the New Act and not the Court to which the application under Section 8 of the new Act is made. An application before the Court under Section 8 merely brings to the Court notice that the subject matter of the action before it is the subject matter of an arbitration agreement."

In view of the aforesaid legal position, the disputes between the parties are liable to be referred to arbitration. In these circumstances, I allow the application (CM. 1557/2002) under Section 8 of the Act and direct that the disputes between the parties be referred to arbitration, as per the arbitration agreement and hold that the present writ petition is not maintainable. However, with a view to enable the petitioner to seek his relief or protection by resorting to Section 9 of the Act or from t he arbitrators, the interim protection granted to the petitioner shall ensure to his benefit for a period of three weeks from today.

The writ petition is dismissed with these directions.