Telangana High Court
M/S Sewkranthi Jv vs The State Of Telangana on 24 March, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.21122 of 2021
Between:
M/s SEW Kranthi JV
Petitioner
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 24.03.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
___________________
SUREPALLI NANDA, J
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.21122 of 2021
% 24.03.2023
Between:
# M/s SEW Kranthi JV
..... Petitioner
And
$ The State of Telangana and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr. A. Venkatesh
^ Counsel for the Respondents: Mr A.Sanjeev Kumar
? Cases Referred:
1. (2014) 5 SCC 1
2. (2022)9 SCC 691
3. (1986) 2 SCC 679
4. 2021 SCC online SC 99
5. 2011(5) SCC 697
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THE HON´BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.21122 of 2021
ORDER:
Heard the learned Senior Counsel Sri A. Venkatesh
appearing for the petitioner and the Special
Government Pleader Sri. A.Snajeev Kumar appearing
on behalf of the Respondents.
2. The Main Prayer sought for by the Petitioner:
"to issue a Writ or an Order or a Direction, more particularly
one in the nature of Writ of Mandamus, to declare the action
of the Respondents in granting administrative approval for
the balance work amounting to Rs.476.00 Crores in package
- VI. Phase-III of JCR-DLS under G.O.Ms.No.31
dt.10.08.2021 to issue a new tender contrary to
G.O.Ms.No.23 dt.24.06.2021, wherein the ongoing irrigation
projects were given extension of time, including the work
undertaken by the petitioner in package - VI. Phase-III of
JCR-DLS placed at Sl.No.34 of the annexure in the above G.O
as illegal, arbitrary and violative of Articles 14. Article 21.
Article 19(1) (g) and Article 300A of the Constitution of India
and violative of the principles of natural justice and great loss
to the state exchequer and the petitioner and consequently
set aside the same, pending the disposal of the above writ
petition."
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PERUSED THE RECORD
3. Interim Orders of this court in connected W.P. No.
24761 of 2021 dated 04.10.2021 read as under:
"Learned Additional Advocate General takes notice on
behalf of the respondents and seeks time to file
counter.
List on 21.10.2021 along with W.P.Nos.8906 and 21122
of 2021.
In the impugned order dated 30.08.2021, the 3rd
respondent has specifically mentioned that the
petitioner is entitled for payment of Rs.15,87,86,155/-
and that the petitioner is liable to pay an amount of
Rs.28,07,60,001/- to the Department.
Sri B. Chandrasen Reddy, learned senior counsel
appearing for the petitioner would submit that the 3
respondent is going to take steps pursuant to the
impugned order dated 30.08.2021. He expresses his
apprehension that the respondents may withhold an
amount of Rs.25 crores which is due to the petitioner by
the 3 respondent which is pending bill and EMD of Rs.8
crores.
Learned Addl. Advocate General, on instructions,
would submit that since there is an arbitration
clause and it is an arbitral dispute, the petitioner
has to invoke the same. Instead of doing so, the
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petitioner has filed the present writ petition which
is not maintainable.
In view of the same, matter requires examination.
Therefore, the 3rd respondent is directed not to take
further steps pursuant to notice dated 30.08.2021."
4. G.O.Ms.No.6 dated 17.03.2022 issued by the
Government of Telangana, Law (E) Department, reads
as under:
"The India's First International Arbitration and Mediation
Centre at Hyderabad (IAMCH) has been set up by the
International Arbitration and Mediation Centre Trust
(IAMC Trust), Hyderabad, a public charitable trust
declared by the Hon'ble Chief Justice of India under a
Trust Deed first read above, executed on 20th August,
2021, to promote various types of alternate dispute
resolution (ADR), in particular arbitration, mediation
and conciliation, which would provide an effective
avenue for access to justice, so as to render speedy and
effective justice and also to reduce the caseload on the
courts in the State.
2. A Memorandum of Understanding (MoU)
second read above has been entered between the
Government of Telangana and the International
Arbitration and Mediation Centre Trust (IAMC
Trust) on 27.10.2021.
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3. According to Clause-5 (IACH's Case
Management Services) of the Memorandum of
Understanding, Government hereby direct all the
Ministries, Departments, Public Sector Companies,
and other entities controlled or managed by the
Government of Telangana:
(i) to designate IAMCH as the arbitral / mediation
institution in all their contracts, agreements,
purchase orders, etc. (Contracts) having value of
more than Rs.3 crores (Rupees three crores only)
and containing an arbitration clause;
(ii) In respect of subsisting Contracts of
value of more than Rs.10 crores (Rupees ten
crores only) to discuss with the counterparty
to such Contract a suitable amendment to
designate IAMCH as the arbitral / mediation
Institution; and
(iii) in respect of ongoing ad-hoc arbitrations of
the value more than Rs.10 crores (to which
Government of Telangana, or its instrumentalities
are parties) to make a request to the arbitral
Tribunal to utilize the services of the IAMCH for
conducting their arbitration.
For further details about the International
Arbitration and Mediation Centre at Hyderabad
(IAMCH), please visit Centre's website."
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5. Articles of Contract agreed and entered into, on
20.01.2010 between the petitioner and the then
Government of Andhra Pradesh, in particular, para 3
which relates to Adjudication of Disputes, is extracted
hereunder:
"3. ADJUDICATION OF DISPUTES:
Except as otherwise provided in the contract, any
disputes and differences arising out of or relating to the
contract shall be referred to adjudication as follows:
1) (i) Settlement of all claims up to Rs.50,000/- in
value and below by way ofArbitration to be
referred as follows:
a) Claims up to Rs. 10,000 in value
SCH Circle, Warangal
b) Claims above Rs. 10,000/- Chief Engineer
and up to Rs. 50,000/- in value SRSP Stage-I
L.M.DColony,
Karimnagar
The arbitration proceedings will be conducted in
accordance with provisions of the Arbitration Act, 1940
as amended from time to time. The arbitrator shall
invariably give reasons in the award-
ii) Settlement of all claims above Rs. 50,000/-
in value:
All claims above Rs 50, 000 in value shall be
decided by the civil court of competent
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jurisdiction by way of regular suit and not by
arbitration."
6. CONTENTIONS OF THE PETITIONER :
A. Learned Senior Counsel Sri A.Venkatesh submits
that the Petitioner JV is a joint venture between SEW
Infrastructure Limited and Kranthi Edifice Private
Limited for executing infrastructure projects, more
specifically irrigation projects in the State of Telangana
and the Petitioner JV entered into agreement No. AB
No. SE/CR/DLIS/WGL/EPC/05/2009-10 dated
20.01.2010 [Agreement") with Respondent No. 1 for
value of Rs. 325.20 Cr. It was agreed that the
Petitioner JV would complete the work within 48
months i.e., by 19.01.2014, subject to immediate
handing over of encumbrance free land by the
Respondents. Pursuant to the execution of the
Agreement, the Petitioner JV kept deposit of
approximately an amount Rs. 15 crores (approx.) in the
form of bank guarantees or FSD as security for
executing the work. The above amount consists of EMD
equivalent to 2.5% of contract value and 7.5% of FSD
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withheld from the running bills submitted. It is
submitted that the above Rs. 15 crores (approx.)
continue to remain with the Respondents as security
either in form of bank guarantees or in the form of
encashed demand drafts or withheld from the running
bills and subsequently disputes arose between the
petitioner and the respondents as explained in the
affidavit filed in support of the present writ petition.
The learned senior counsel further does not dispute the
fact that the Articles of Contract dt. 20.01.2010 entered
into between the Petitioner and the 1st Respondent
clearly stipulates that any disputes and differences
arising out of and relating to the contract shall be
referred to adjudication in respect of settlement of all
claims up to Rs.50,000/- in value and below by way of
Arbitration and further for settlement of all claims
above Rs.50,000/- in value shall be decided by the Civil
Court of competent jurisdiction by way of regular suit.
B. The learned Senior Counsel Sri A.Venkatesh,
however puts forth mainly one specific contention :
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That in view of the clear observations of this
Court in its interim orders dt. 04.10.2021 in WP
No.24761/2021 (extracted above) that the
learned Additional Advocate General, on
instructions submitted that since there is an
arbitration clause and it is an arbitral dispute the
petitioner has to invoke the same and in view of
the clear statement made by the Learned
Advocate General on instructions, knowing fully
well and having knowledge of the fact that the
subsisting disputes between the Petitioner and
Respondents herein value more than Rs.10 crores,
insists that the matter has to be referred to
arbitration applying and invoking clause 3 sub-
clause (2) of G.O.Ms.No.6, dt. 17.03.2022 issued
by the Government of Telangana.
7. CONTENTIONS OF THE RESPONDENTS
Learned Special Government Pleader Sri A.Sanjeev
Kumar, however contends that as per clause 3 of the
Articles of Contract agreed and entered into on
20.01.2010 between the petitioner and the Government
that the arbitration could be adopted only for
settlement of all claims upto Rs.50,000/- in value and
below by way of arbitration and all claims above
Rs.50,000/- in value shall be decided by the Civil Court
of Competent Jurisdiction by way of regular suit and not
by arbitration.
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8. DISCUSSION AND CONCLUSION :
A) Having heard Learned Senior Counsel Sri
A.Venkatesh on behalf of the petitioner and also the
Learned Special Govt. Pleader Sri A. Sanjeev Kumar on
behalf of the Respondents and having perused the
materials on record and duly taking into consideration
the averments made by the petitioner in the affidavit
filed in support of the present writ petition, this Court
is prima facie of the view that there are disputes
between the parties which are required to be resolved.
This Court is also conscious of the fact that the case on
record is a Writ Petition filed under Article 226 of the
Constitution of India and not an Arbitration Application
filed U/s.11(5) and (6) of the Arbitration and
Conciliation Act, 1996 for appointment of an arbitrator
to resolve the disputes between the parties.
B) Learned Counsel for the parties however are in
agreement that the dispute between the parties may be
referred to arbitration, though Learned Counsel
appearing on behalf of the Respondents referring to
Clause 3 of Articles of Contract agreed and entered into
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on 20.01.2010 between the Petitioner and the
Government contends that Arbitration could be adopted
for settlement of all claims upto Rs.50,000/- in value
and below by way of Arbitration.
C. This Court is of the firm opinion that as per Clause
3 Sub-Clause (ii) of G.O.Ms.No.6, dt. 17.03.2022
(extracted above) issued by the Government of
Telangana and in view of the fact that in the present
case the claim and counter claim value admittedly is
more than Rs.10 crores, i.e. more than 15 crores is the
claim of the petitioner herein against the respondents
and more than 28 crores is the counter claim of the
respondents against the petitioner herein. This Court
opines that the Respondents should be directed to
initiate appropriate steps and discuss with the
Petitioner herein who is the counterpart to Articles of
Contract agreed and entered into on 20.01.2010
between the Petitioner and the Respondents i.e.,
Government and bring about a suitable amendment to
designate IAMCH i.e., International Arbitration and
Mediation Centre (IAMC) Hyderabad as the
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arbitral/mediation Institution and further to make a
request to the competent authority to utilize the
services of the IAMCH for conducting their arbitration
in view of the fact as borne on record that Clause 3
Sub-Clause (ii) clearly provides for such a
mechanism/process for resolving the arbitral disputes
between the petitioner and the Respondents herein.
D. A 3-Judge Bench of the Apex Court in Emercon
(India) Ltd., V. Emercon GmbH reported in (2014) 5
SCC 1 dealt with an Arbitration Clause and observed
(SCC at para 39, para 88) as under :
"88. In our opinion, the courts have to adopt a
pragmatic approach and not a pedantic or
technical approach while interpreting or
construing an arbitration agreement or arbitration
clause. Therefore, when faced with a seemingly
unworkable arbitration clause, it would be the
duty of the court to make the same workable
within the permissible limits of the law, without
stretching it beyond the boundaries of
recognition. In other words, a common sense
approach has to be adopted to give effect to the
intention of the parties to arbitrate. In such a
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case, the court ought to adopt the attitude of a
reasonable business person, having business
common sense as well as being equipped with the
knowledge that may be peculiar to the business
venture. The arbitration clause cannot be
construed with a purely legalistic mindset, as if
one is construing a provision in a statute.
E. The Division Bench of Apex Court in its recent
judgment dated 07.09.2022 reported in (2022) 9 SCC
691, Babanrao Rajaram Puna vs. Samarth Builders and
Developers and Another at para 28 and 29 observed as
under :
"28. There is no gainsaying that it is the bounden
duty of the parties to abide by the terms of the
contract as they are sacrosanct in nature, in
addition to, the agreement itself being a
statement of commitment made by them at the
time of signing the contract. The parties entered
into the contract after knowing the full import of
the arbitration clause and they cannot be
permitted to deviate therefrom.
29. It is thus imperative upon the courts to give
greater emphasis to the substance of the clause,
predicated upon the evident intent and objectives
of the parties to choose a specific form of dispute
resolution to manage conflicts between them. The
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intention of the parties that flows from the
substance of the agreement to resolve their
dispute by arbitration are to be given due
weightage. e It is crystal clear to us that Clause
18. in this case, contemplates a binding reference
to arbitration between the parties and it ought to
have been given full effect by the High Court.
9. MAINTAINABILITY OF THE WRIT PETITION
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA:
a) A Division Bench of the Apex Court in its judgment
reported in 2021 SCC Online SC 99 dated 17.02.2021 in
Unitech Limited and others v Telangana State
Industrial Infrastructure Corporation (TSIIC) and
others dealt with the issue of maintainability of the
writ petition under Article 226 of the Constitution of
India and observed at Paras 39, 40 and 41 which read
as under:
39. A two judge Bench of this Court in ABL International
Ltd. v. Export Credit Guarantee Corporation of India
[ABL International] analyzed a long line of precedent of
this Court to conclude that writs under Article 226
are maintainable for asserting contractual rights
against the state, or its instrumentalities, as
defined under Article 12 of the Indian
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Constitution. Speaking through Justice N Santosh
Hegde, the Court held:
"27. ...the following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of fact
arise for consideration, same cannot be a ground to
refuse to entertain a writ petition in all cases as a
matter of rule.
(c) A writ petition involving a consequential relief of
monetary claim is also maintainable."
40. This exposition has been followed by this Court, and
has been adopted by three -judge Bench decisions of
this Court in State of UP v. Sudhir Kumar and Popatrao
Vynkatrao Patil v. State of Maharashtra . The decision in
ABL International, cautions that the plenary power
under Article 226 must be used with circumspection
when other remedies have been provided by the
contract. But as a statement of principle, the
jurisdiction under Article 226 is not excluded in
contractual matters. Article 23.1 of the Development
Agreement in the present case mandates the parties to
resolve their disputes through an arbitration. However,
the presence of an arbitration clause within a contract
between a state instrumentality and a private party has
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not acted as an absolute bar to availing remedies under
Article 226. If the state instrumentality violates its
constitutional mandate under Article 14 to act
fairly and reasonably, relief under the plenary
powers of the Article 226 of the Constitution
would lie. This principle was recognized in ABL
International:
"28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and
is not limited by any other provisions of the
Constitution. The High Court having regard to the facts
of the case, has a discretion to entertain or not to
entertain a writ petition. The Court has imposed upon
itself certain restrictions in the exercise of this power.
(See Whirlpool Corpn. v. Registrar of Trade Marks
[(1998) 8 SCC 1].) And this plenary right of the
High Court to issue a prerogative writ will not
normally be exercised by the Court to the
exclusion of other available remedies unless such
action of the State or its instrumentality is
arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other
valid and legitimate reasons, for which the Court
thinks it necessary to exercise the said
jurisdiction." (emphasis supplied)
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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
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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 refund of its
principal.
b) A Division Bench of the Supreme Court in its
judgment reported in 2011(5) SCC 697, in Union of
India and others v Tantia Construction Private Limited,
dated 18.04.2011 dealing with an issue of
Existence/Availability of arbitration clause in
agreement, in particular, paras 20, 21, 22, 33 and 34
read as under:
"20. It was also contended that since the Petitioners
had illegally terminated the contract with the
Respondent Company, the Writ Court had stepped in to
correct such injustice. In fact, Mr. Chakraborty also
submitted that the objection taken on behalf of the
Petitioners that the relief of the Respondent
Company lay in arbitration proceedings and not by
way of a Writ Petition was devoid of substance on
account of the various decisions of this Court
holding that an alternate remedy did not place
any fetters on the powers of the High Court under
Article 226 of the Constitution.
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21. In support of his aforesaid submissions Mr.
Chakraborty firstly relied and referred to the decision of
this Court in Harbanslal Sahnia vs. Indian Oil
Corporation Ltd. [(2003) 2 SCC 107], wherein this
Court observed that the Rule of exclusion of writ
jurisdiction by availability of an alternative
remedy, was a rule of discretion and not one of
compulsion and there could be contingencies in which
the High Court exercised its jurisdiction inspite of
availability of an alternative remedy.
22. Mr. Chakraborty also referred to and relied on the
decision of this Court in Modern Steel Industries vs.
State of U.P. and others [(2001) 10 SCC 491], wherein
on the same point this Court had held that the High
Court ought not to have dismissed the writ
petition requiring the Appellant therein to take
recourse to arbitration proceedings, particularly
when the vires of a statutory provision was not in
issue. Reference was also made to the decision of this
Court in Whirlpool Corporation vs. Registrar of Trade
Marks [(1998) 8 SCC 1]; National Sample Survey
Organisation and Another vs. Champa Properties
Limited and Another [(2009) 14 SCC 451] and
Hindustan Petroleum Corporation Limited and Others
vs. Super Highway Services and Another [(2010)3 SCC
321], where similar views had been expressed.
33. Apart from the above, even on the question of
maintainability of the writ petition on account of the
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Arbitration Clause included in the agreement between
the parties, it is now well-established that an alternative
remedy is not an absolute bar to the invocation of the
writ jurisdiction of the High Court or the Supreme Court
and that without exhausting such alternative remedy, a
writ petition would not be maintainable. The various
decisions cited by Mr. Chakraborty would clearly
indicate that the constitutional powers vested in
the High Court or the Supreme Court cannot be
fettered by any alternative remedy available to
the authorities. Injustice, whenever and wherever it
takes place, has to be struck down as an anathema to
the rule of law and the provisions of the Constitution.
34 We endorse the view of the High Court that
notwithstanding the provisions relating to the
Arbitration Clause contained in the agreement,
the High Court was fully within its competence to
entertain and dispose of the Writ Petition filed on
behalf of the Respondent Company.
c) The Supreme Court in the judgment of
Comptroller and Audit General of India, Gian Prakash,
New India and Another vs K.S. Jagannathan and
Another reported in 1986 2 SCC 679, in particular at
para 18, 19 and 20, observed as under:
"18. The first contention urged by learned counsel for
the appellants was that the Division Bench of the High
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Court could not issue a writ of mandamus to direct a
public authority to exercise its discretion in a particular
manner. There is a basic fallacy underlying this
submission-both with respect to the order of the
Division Bench and the purpose and scope of the writ of
mandamus. The High Court had not issued a writ of
mandamus. A writ of mandamus was the relief prayed
for by the respondents in their writ petition. What the
Division Bench did was to issue directions to the
appellants in the exercise of its jurisdiction under Article
226 of the Constitution. Under Article 226 of the
Constitution, every High Court has the power to
issue to any person or authority, including in
appropriate cases, any government, throughout
the territories in relation to which it exercises
jurisdiction, directions, orders, or writs including
writs in the nature of habeas corpus, mandamus,
quo warranto and certiorari or any of them, for
the enforcement of the Fundamental Rights
conferred by Part III of the Constitution or for any
other purpose. In Dwarkanath v. ITO this Court
pointed out that Article 226 is designedly couched
in a wide language in order not to confine the
power conferred by it only to the power to issue
prerogative writs as understood in England, such
wide language being used to enable the High
Courts "to reach injustice wherever it is found"
and "to mould the reliefs to meet the peculiar and
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complicated requirements of this country. In
Hochtief Gammon v. State of Orissa' this Court held
that the powers of the courts in England as regards the
control which the Judiciary has over the Executive
indicate the minimum limit to which the courts in this
country would be prepared to go in considering the
validity of orders passed by the government or its
officers.
19. Even had the Division Bench issued a writ of
mandamus giving the directions which it did, if
circumstances of the case justified such directions, the
High Court would have been entitled in law to do so for
even the courts in England could have issued a writ of
mandamus giving such directions. Almost a hundred
and thirty years ago, Martin, B., in Mayor of Rochester
v. Regina said:
But, were there no authority upon the subject,
we should be prepared upon principle to affirm
the judgment of the Court of Queen's Bench.
That court has power, by the prerogative writ of
mandamus, to amend all errors which tend to
the oppression of the subject or other
misgovernment, and ought to be used when the
law has provided no specific remedy, and justice
and good government require that there ought
to be one for the execution of the common law
or the provisions of a statute: Comyn's Digest,
Mandamus (A).... Instead of being astute to
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discover reasons for not applying this great
constitutional remedy for error and
misgovernment, we think it our duty to be
vigilant to apply it in every case to which, by any
reasonable construction, it can be made
applicable.
The principle enunciated in the above case was
approved and followed in King v. Revising Barrister for
the Borough of Hanley. In Hochtief Gammon case this
Court pointed out (at p. 675 of Reports: SCC p. 656)
that the powers of the courts in relation to the orders of
the government or an officer of the government who
has been conferred any power under any statute, which
apparently confer on them absolute discretionary
powers, are not confined to cases where such power is
exercised or refused to be exercised on irrelevant
considerations or on erroneous ground or mala fide, and
in such a case a party would be entitled to move the
High Court for a writ of mandamus. In Padfield v.
Minister of Agriculture, Fisheries and Food the House of
Lords held that where Parliament had conferred a
discretion on the Minister of Agriculture, Fisheries and
Food, to appoint a committee of investigation so that it
could be used to promote the policy and objects of the
Agricultural Marketing Act, 1958, which were to be
determined by the construction of the Act which was a
matter of law for the court and though there might be
reasons which would justify the Minister in refusing to
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refer a complaint to a committee of investigation, the
Minister's discretion was not unlimited and if it
appeared that the effect of his refusal to appoint a
committee of investigation was to frustrate the policy of
the Act, the court was entitled to interfere by an order
of mandamus. In Halsbury's Laws of England, 4th edn.,
vol. I, para 89, it is stated that the purpose of an
order of mandamus
is to remedy defects of justice; and accordingly it
will issue, to the end that justice may be done, in
all cases where there is a specific legal right and
no specific legal remedy for enforcing that right;
and it may issue in cases where, although there is
an alternative legal remedy, yet that mode of
redress is less convenient, beneficial and
effectual.
20. There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article
226 have the power to issue a writ of mandamus
or a writ in the nature of mandamus or to pass
orders and give necessary directions where the
government or a public authority has failed to
exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy
decision of the government or has exercised such
discretion mala fide or on irrelevant
considerations or by ignoring the relevant
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considerations and materials or in such a manner
as to frustrate the object of conferring such
discretion or the policy for implementing which
such discretion has been conferred. In all such
cases and in any other fit and proper case a High
Court can, in the exercise of its jurisdiction under
Article 226, issue a writ of mandamus or a writ in
the nature of mandamus or pass orders and give
directions to compel the performance in a proper
and lawful manner of the discretion conferred
upon the government or a public authority, and in
a proper case, in order to prevent injustice
resulting to the concerned parties, the court may
itself pass an order or give directions which the
government or the public authority should have
passed or given had it properly and lawfully
exercised its discretion."
10. This Court opines that this Court exercising
jurisdiction under Article 226 of the Constitution of
India is also a Court of Equity. It will have to be
mindful of the interests of justice and ensure that in
rigidly applying technical rule of procedure,
miscarriage of justice does not result.
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11. Taking into consideration all the above referred
facts and circumstances and the evident intent and
objectives of the parties to choose a specific form of
dispute resolution to manage conflicts between them
and interim orders of this Court dt. 04.10.2021 in
W.P.No.24761 of 2021, which observed the fact that
the Learned Addl. Advocate General, on instructions
submitted to the Court that since there is an Arbitration
Clause and it is arbitral dispute the Petitioner has to
invoke the same, without going into the merits of the
claim and counter claim of the parties on all the issues
involved in the present case and without even
expressing any opinion on the same and further taking
into consideration Clause 3, Sub-clause (ii) of
G.O.Ms.No.6, dt. 17.03.2022 and duly considering the
observations of the Apex Court in judgement reported
in (2014) 5 SCC 1 in Emercon (India) Ltd., V. Emercon
GmbH and also the judgment of the Apex Court
reported in (2022) 9 SCC 691 in Puna vs. Samarth
Builders and Developers and Another and also the
judgement of the Apex Court reported in (1986) 2 SCC
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28 SN,J
679 in Comptroller and Auditor General of India, Gian
Prakash, New Delhi and Another v. K.S. Jangannathan
and Another, Unitech Limited and others v Telangana
State Industrial Infrastructure Corporation (TSIIC) and
others reported in 2021 SCC online SC 99 dated
17.02.2021 and Union of India and others v Tantia
Construction Private Limited, dated 18.04.2011
reported in 2011(5) SCC 697 (extracted above) the
writ petition is disposed of directing the respondents to
discuss with the Petitioner who is the counterparty to
the agreement dt. 20.01.2010 entered into by and
between the petitioner and Respondents duly applying
Clause 3 Sub-Clause 2 of G.O.Ms.No.6, dt. 17.03.2022
and bring about a suitable amendment to designate
International Arbitration and Mediation Centre (IAMC)
Hyderabad as the Arbitral Mediation Institution to
utilize the services of the IAMCH for conducting their
arbitration relating to all the disputes between the
petitioner and the respondents herein arising out of
Contract vide agreement No. AB No. SE/JCR/DLIS/
WGL/EPC/05/2009-10 dated 20.01.2010, within a period
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29 SN,J
of 3 weeks from the date of receipt of the copy of the
order. However, there shall be no order as to costs.
Miscellaneous petitions, pending, if any, shall be
disposed off.
________________________________
MRS JUSTICE SUREPALLI NANDA
Dated: 24.03.2023
Note: L.R.Copy to be marked
b/o kvrm
