Manipur High Court
The State Of Manipur Represented ... vs Shri Soraisam Gobin Singh on 24 February, 2021
Page 1 of 12
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
M.C.[W.P.(C)] No.24 of 2021
in W.P.(C) No.6 2021
1. The State of Manipur represented by the Commissioner,
Consumer Affairs Food & Public Distribution (CAF & PD),
Government of Manipur, Secretariat Building, P.O. & P.S.
Imphal, Manipur - 795001;
2. The Director, Consumer Affairs Food & Public Distribution
(CAF & PD), Government of Manipur, Sangaiprou, Imphal
West, P.O. Tulihal & P.S. Imphal, Manipur-795140;
3. The Under Secretary, Consumer Affairs Food & Public
Distribution (CAF & PD), Government of Manipur,
Secretariat Building, P.O. & P.S. Imphal, Manipur-795001;
4. M/s Khaidem Enterprises, M.G. Avenue, Thangal Bazar,
Imphal, P.O. & P.S. Imphal, Imphal West District, Manipur-
795001.
....... Applicant/s
- Versus -
Shri Soraisam Gobin Singh, aged about 38 years, Proprietro,
M/s Soraisam Enterprises, S/o (L) Soraisam Brajamani Singh,
resident of Heirangoithong Ningthemcha Karong, P.O. & P.S.
Singjamei, Imphal West District, Manipur-795008.
...Respondent/s
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
With M.C.[W.P.(C)] No.25 of 2021
in W.P.(C) No.7 2021
The State of Manipur and 3 Ors.
....... Applicant/s
- Versus -
Elangbam Amitkumar Singh
...Respondent/s
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant/s : Mr. Lenin Hijam, Ld. Addl. AG
For the Respondent/s : Mr. Irom Denning, Adv.
Date of hearing : 02.02.2021
Judgment & Order : 24.02.2021
JUDGMENT & ORDER
(CAV)
Heard Mr. Lenin Hijam, Ld. Addl. AG for the
applicants/petitioners and Mr. Irom Denning, Ld. counsel for the respondent.
[2] The State has filed these two miscellaneous cases under
Section 8 of the Arbitration and Conciliation Act, 1996 seeking to dismiss the
writ petitions being W.P.(C) Nos.6 and 7 of 2021 pending on the file of this
Court filed by the respondent-writ petitioner stating that there is a binding
contract between the respondent-writ petitioner and the Arbitrator and any
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
dispute arising out of the contract shall be settled through arbitration by an
Arbitrator appointed by the State Government.
[3] The learned Additional Advocate General for the State
submitted that the respondent-writ petitioner filed the writ petitions without
exhausting their remedies before the arbitration and therefore, this Court has
no jurisdiction to entertain the writ petitions. Drawing attention to the
arbitration clause contained in the agreement dated 19.03.2020 entered
between the respondent-writ petitioner and the State, the learned Additional
Advocate General contended that when Clause 6 of the agreement
specifically states that in the event any dispute arising out of the agreement,
the matter shall be settled through arbitration by an Arbitrator to be
appointed by the State Government. Thus, the learned Additional Advocate
General submitted that in the instant case, the respondent-writ petitioners
have filed the writ petitions without invoking the arbitration and hence, the
writ petitions of the respondent-writ petitioner are not maintainable before
this Court.
[4] Per contra, the learned counsel for the respondent-writ
petitioners submits that these miscellaneous cases have been filed by the
State in conspiracy with the fourth petitioner herein. He would submit that the
State authorities have exercised their power illegally and unlawfully and such
power was exercised in coalition with the said fourth petitioner. The learned
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
counsel further submitted that since the State authorities has passed the
order impugned in the writ petitions just to man their choice of transporter
and in violation of principles of natural justice, the respondent-writ petitioners
have filed the writ petitions challenging the orders
dated 16.12.2020 impugned. He would submits that in fact before
completion of the agreeable period of one year between the parties, the
State authorities have unilaterally awarded the contract to the fourth
petitioner and while doing so, no opportunity was provided to the
respondent-writ petitioners. As such, the action of the State authorities is
unlawful, arbitrary and illegal in the eyes of law. Thus, the learned counsel
submits that there are no merits in the present miscellaneous cases and the
same are liable to be dismissed.
[5] This Court considered the submissions raised by the learned
counsel for the parties and also perused the materials available on record.
[6] The respondent-writ petitioners filed the writ petitions to quash
the order dated 16.12.2020 issued by the Under Secretary (CAF&PD),
Government of Manipur stating that in supersession of all previous
Government Orders issued in this regard, the Governor of Manipur by an
order dated 02.03.2020 was pleased to appoint the respondent-writ
petitioners as transport contractors for transportation of PDS rice for
doorstep delivery of the TPDS items with immediate effect for a period of
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
one year or till regular transport contractors are appointed, whichever is
earlier and until further orders.
[7] It appears that pursuant to the order dated 02.03.2020, an
agreement was entered between the State and the respondent-writ
petitioners on 19.3.2020.
[8] According to the respondent-writ petitioners, the respondent-
writ petitioners were transporting PDS rice from Food Storage Depots of
Consumer Affairs to the districts indicated therein. While so, without any
notice to the respondent-writ petitioners and in supersession of all previous
orders issued in that regard, the State authorities appointed the fourth
petitioner herein as transport contractor for transportation of PDS rice and
the said act of the State authorities is in violation of principles of natural
justice.
[9] At this juncture, highlighting the arbitration clause contained in
the agreement dated 19.03.2020, the learned Additional Advocate General
for the State submitted that if the respondent-writ petitioners are aggrieved
by the award of contract to the fourth petitioner herein, their remedy lies
before the Arbitrator to settle the dispute and the respondent-writ petitioners
have no right to approach this Court under Article 226 of the Constitution of
India.
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
[10] On the other hand, the learned counsel for the respondent-writ
petitioners submits that this Court is empowered with extraordinary power
and discretionary power to interfere with any act or action of the State which
are illegal and in the instant case, the State authorities have failed to comply
with the terms of the contract and therefore, this Court has ample power to
interfere with the impugned order and prayed for dismissal of the
miscellaneous cases. In support, the learned counsel relied upon the
following decisions:
(1) ABL International Limited and another v. Export Credit Guarantee
Corporation of India Ltd. and others, (2004) 3 SCC 553:
(2) Maharashtra Chess Association v. Union of India and others, Civil
Appeal No.5654 of 2019, decided on 29.7.2019.
[11] In ABL International Limited (supra), the Hon'ble Supreme
Court held that a writ petition involving serious disputed questions of facts
which requires consideration of evidence which is not on record will not
normally be entertained by a Court in the exercise of its jurisdiction under
Article 226 of the Constitution, but there is no absolute rule that in all cases
involving disputed questions of fact the parties should be relegated to a civil
suit. The Hon'ble Supreme Court further observed that the writ court has the
jurisdiction to entertain a writ petition involving disputed questions of fact and
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
there is no absolute bar for entertaining a writ petition even if the same
arises out of a contractual obligation and/or involves some disputed
questions of fact.
[12] In Maharashtra Chess Association (supra), the Hon'ble
Supreme Court observed that the existence of an alternate remedy, whether
adequate or not, does not alter the fundamentally discretionary nature of the
High Court's writ jurisdiction and therefore does not create an absolute legal
bar on the exercise of the writ jurisdiction by a High Court. The decision
whether or not to entertain an action under its writ jurisdiction remains a
decision to be taken by the High Court on an examination of the facts and
circumstances of a particular case.
[13] On a perusal of the agreement dated 19.03.2020 entered
between the respondent-writ petitioners and the State Government, it is seen
that the writ petitioner in W.P.(C) No.6 of 2021 was appointed as transport
contractor to carry out the work of transportation of rice from (1) FSD of
CAF&PD to Konthoujam, Langthabal, Sekmai (including part of Saitu),
Mayang Imphal, Naoriya Pakhanglakpa, Patsol, Thangmeiband, Lamshang
and part of Yaiskul ACs in Imphal West District; (2) FSD of CAF & PD to
Shaikot AC in Churachandpur District; (3) FSD of CAF & PD to Tipaimukh
and Thanion ACs in Pheerzawl District and (4) FSD of CAF&PD to Tamei
AC in Tamengiong District. Similarly, the writ petitioner in W.P.(C) No.7
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
of 2021 was appointed as transport contractor to carry out the work of
transportation of rice from (1) FSD of CAF&PD to Wangoi, Uripok,
Keishamthong, Singjamei and Sagolband ACs in Imphal West District; (2)
FSD of CAF&PD to Ukhrul and Chingal ACs in Ukhrul District; (3) FSD of
CAF & PD to Phungyar AC in Kamjong District and (4) FSD of CAF & PD to
Mao and Tadubi ACs in Senapati District.
[14] Clause 6 of the agreement dated 19.03.2020 reads thus:
"6. In the event of any dispute arising out of this
agreement the matter shall be settled in Manipur through
arbitration by an Arbitrator to be appointed by the
Government and the provisions of the Indian Arbitration
and Reconciliation Act, 1996 shall be applicable to such
arbitration. The decision of the arbitrator shall be final
and binding on the parties."
[15] The contention of the respondent-writ petitioners is that while
the contract/agreement between the State and the writ petitioners are in
force, the State authorities, without any notice to the writ petitioners, cannot
award contract to fourth petitioner herein.
[16] The perusal of the order impugned in the writ petitions shows
that the State authorities in supersession of all previous orders issued in this
regard appointed the fourth petitioner as transport contractor for
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
transportation of PDS rice to the Assembly Constituencies for doorstep
delivery of the TPDS items with immediate effect for a period of one year or
till regular transport contractors are appointed.
[17] If really, the respondent-writ petitioners are prejudiced and/or
aggrieved by the awarding the contract to the fourth petitioner herein, their
remedy is to invoke the arbitration clause and such facts cannot be decided
in the writ petition.
[18] A perusal of Clause (6) clearly shows that the parties to the
agreement had agreed to refer their dispute arising out of the agreement, of
whatever nature it may be, to an Arbitrator as contemplated in that
agreement. Section 8 of the Arbitration and Conciliation Act, 1996 in clear
terms mandates that a judicial authority before which an action is brought in
a matter which is the subject of an arbitration agreement to refer such parties
to arbitration.
[19] Section 8 of the Arbitration and Conciliation Act, 1996 provides:
"8. Power to refer parties to arbitration where there is an arbitration
agreement:-
(1) A judicial authority before which an action is brought in a matter which
is the subject to an arbitration agreement shall, if a party so applies
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
not later than when submitting his first statement on the substance of
the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained
unless it is accompanied by the original arbitration agreement or a
duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section
(1) and that the issue is pending before the judicial authority, an
arbitration may be commenced or continued and an arbitral award
made."
[20] In P.Anand Gajapathy Raju v. P.G.V. Raju, (2000) 4 SCC 539,
the Hon'ble Supreme Court held that the language of Section 8 is
peremptory in nature. Therefore, in cases where there is an arbitration
clause in the agreement, it is obligatory for the Court to refer the parties to
arbitration in terms of their arbitration agreement and nothing remains to be
decided in the original action after such an application is made except to
refer the dispute to an arbitrator.
[21] In the present case, the existence of an arbitral clause in the
agreement dated 19.03.2020 is not disputed by the respondent-writ
petitioners. When that being the position, this Court is of the view that the
respondent-writ petitioners cannot maintain writ petitions. The respondent
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
writ petitioners have failed to establish that the State authorities have
exercised their power wrongfully and have acted arbitrarily, thereby infringed
upon the civil and constitutional right of the respondent-writ petitioners. Since
the issue raised by the respondent-writ petitioners is the dispute as
mentioned in the agreement dated 19.03.2020 and in the given facts and
circumstances of the case, the writ petitions are not maintainable.
[22] Considering the facts and circumstances of the case, the
respondent-writ petitioners are barred from exercising any legal remedy
under Article 226 of the Constitution of India without exhausting the
arbitration as contemplated under the Arbitration and Conciliation
Act, 1996 and therefore, the miscellaneous cases filed by the State are liable
to be allowed. In the result,
(i) M.C.[W.P.(C)] Nos.24 and 25 of 2021 are allowed. As a
consequence, W.P. (C) Nos.6 and 7 of 2021 are dismissed.
(ii) The parties are relegated their remedy before the Arbitrator and
the State Government may appoint an Arbitrator to resolve the
dispute in terms of the arbitration clause contained in the
agreement dated 19.03.2020.
(iii) The parties are at liberty to put forth their respective case
before the State appointed Arbitrator and the Arbitrator will
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
resolve the dispute in accordance with law within a reasonable
time after affording sufficient opportunity to the parties.
[23] Registry is directed to issue copy of this order to both the
parties through their whatsapp/e-mail.
JUDGE
FR/NFR
-Larson
Yumk Digitally signed
by Yumkham
Rother
ham Date:
2021.02.24
Rother 11:27:55
+05'30'
MC[WP(C)] Nos.24&25 of 2021 in W.P.(C) Nos.6 & 7 of 2021
