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Judgment
By medium of the instant petition, the petitioner is praying for the grant of following relief(s):
“(I) Mandamus, thereby directing the respondents to provide the rate of revision to the petitioner from the year 2007 after every 6-
months as per Govt. of India Policy till 3/2020 and from 01-04-2010 to give to the petitioner rate revision after every 3-months as per the
new Govt. of India Policy;
(II) Mandamus, thereby commanding the respondents to adhere to terms and conditions and policy of the Govt. of India in its letter and
spirit for providing rate revision as per Govt. Policy Decision and also release back log rate revision from the year 2007 with interest at the
rate of 18%; and
(III) Any other order/ direction which this Hon’ble Court may deem just and proper in the circumstances of the case though not prayed
for be also passed in favour of the petitioner and against the respondents.â€
The crux of the petition of the petitioner is that the petitioner claims to be a member of the Cooperative Union of J&K Dairy Producers,
Processors and Marketing, Jammu, registered under the Societies Act. It is stated that the Ministry of Defense, as a matter of policy, and in the year
2005, decided that they will procure milk for the army personnel from registered Cooperative Societies with the object of ensuring better milk and milk
products to the army personnel, besides benefitting the farmers directly. Accordingly, the petitioner Union, right from the year 2005, after having
emerged successful participant in the contract process, has been supplying milk to various Military Farms in Jammu as well as in Kashmir through the
respondents from 1st of October, 2005 till date, but the only rate revision for the period from 1st of October, 2005 to 30th of September, 2006 for
Military Farm, Nowshera and Military Farm, Udhampur was sanctioned on 20th of February, 2007 by the respondents and rate revision for the period
of April 2006 to 31st of March, 2007, with sanction of the Quarter Master General (QMG) dated 4th of April, 2007, for Military Farm, Jammu;
Military Farm, Rajouri; Military Farm, Srinagar; and Military Farm, Baramulla was given. It is pleaded that the rate revision, since April, 2007 till 1st of
April, 2014, has not been provided by the respondents, despite the fact that as per the terms and conditions of the contract governing the parties, the
respondents were under obligation to provide adequate rate revision. It is further submitted that on 10th of May, 2010, a new policy regarding milk
supply has been issued, wherein revision of rates has been provided after three months, instead of six months, as was provided under the earlier policy
of the Government. In this behalf, the petitioner Union, from time to time, have been requesting the respondents that they shall redress their grievance
by giving them adequate rate revision to which they are entitled to. It is also contended that the petitioner Union has been supplying milk to the Military
Farms to their best satisfaction and, till date, no complaint whatsoever has been made against the said supply of milk. The petitioner, as stated, claims
to have supplied milk even for the period when there was no contract in existence as the last rate contract for supply of milk had expired on 30th of
September, 2010, whereafter the petitioner’s contract was extended for a further period of six months. Thereafter, the petitioner, in the shape of
Affidavit dated 12th of January, 2011, claims to have requested the respondents that the conditions of STA (Short Term Agreement), as laid down in
letter of Defense Ministry dated 10th of July, 2010, be complied with, including revision of rate after every six months. The petitioner has proceeded to
contend that it has been continuously requesting the respondents, both verbally and through written representations, to revise the rates, but the
grievance of the petitioner has not been redressed compelling the petitioner to approach this Court through the medium of the instant petition.
Interestingly, two proceedings are presently on record from the respondents; one unsigned and purported to have been filed in the year 2015 by the
then Assistant Solicitor General of India (ASGI), which is disputed to be the valid and vetted one by the present Assistant Solicitor General of India
(ASGI); and the second one filed by Mr Tahir Majid Shamsi, the present Assistant Solicitor General of India (ASGI), in the shape of Counter Affidavit
dated 24th of February, 2021, duly signed and vetted by the respondents. With regard to the first reply purported to have been filed in the year 2015,
Mr Shamsi submitted that same is neither attested nor vetted by the respondents, as such, the petitioner cannot rely on an unauthenticated document
which has not been endorsed or authenticated by the respondents. The learned Assistant Solicitor General of India pleads that the petitioner cannot
force the respondents to adopt a reply which has not been finalized and attested as final reply. May that be as it is, since the first reply placed on
record by Mr Naik, the learned Senior Counsel, is unsigned, coupled with the fact that Mr Shamsi has denied its authenticity, it is thought just and
proper to rely on the Counter Affidavit filed by the respondents.
In the Counter Affidavit so filed by the respondents, it has been contended that the subject matter involves disputed questions of rates and, as
such, cannot be adjudicated upon in Writ proceedings. It is submitted that the rates claimed by the petitioner were never agreed or sanctioned and, as
a matter of fact, the petitioner is bound by the terms and conditions of the contract mutually agreed between the parties. It is contended that neither
the terms and conditions of the subject contract nor the special conditions annexed therewith contain any clause or averment which, expressly or
impliedly, suggests or binds the respondents to revise the rates agreed upon in the contract and, therefore, the petitioner Union is not entitled to claim
payment at revised Civil Consumer Price (CCP) rates as a matter of right. It is also pleaded by the respondents that in any case, if the petitioner
Union had any grievance in relation to the contractual liability qua it not being satisfied with regard to the payment of rates, it had the option to refer
the matter to Conciliation and Arbitration proceedings under the Arbitration and Conciliation Act as stipulated and agreed upon by the parties at
Paragraphs 21 to 26 of the contract. In the end, the respondents have prayed that the petition of the petitioner, being devoid of any merit, deserves to
be dismissed.
Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.
In terms of order dated 26th of November, 2014, this Court, while issuing notice to the other side, directed the respondents to consider the release
of payment as per revised rates in favour of the petitioner subject to furnishing of undertaking by the petitioner to the effect that in case result of the
Writ petition ultimately goes against the petitioner, he shall reimburse the payment. This order appears to have become the subject matter of two
contempt petitions, viz. CCP(S) No.28/2020 and CPOWP No.296/2017, which, too, are clubbed herewith this petition.
Having heard the learned counsel for the parties, perused the pleadings on record and considered the matter, I am of the considered view that
disputed questions of facts are involved herein this petition, which, in a Writ proceeding, cannot be gone into, besides the very existence of an
‘Arbitration Clause’ in the contract governing the parties leaves no option to the Court, but to point the parties in the direction of arbitration.
It is settled legal position that in exercise of Writ jurisdiction, this Court cannot go into a fact-finding mission so as to ascertain the veracity of the
rival claims. A Writ petition is also not the proper proceeding for enforcing contractual obligations; and, that if an alternative and equally efficacious
remedy, in the shape of having recourse to Arbitration provided in the terms and conditions of the agreement governing the parties in the instant case,
is available to a litigant, he is required to pursue that remedy and not invoke the jurisdiction of the High Court directly. At the same time, the Court is
conscious of the fact that even though there is no specific bar in approaching this Court for the grant of relief of issuance of a ‘Writ of
Mandamus’ for compliance of the statutory obligation, yet it would be appropriate that the parties binding by the ‘Arbitration’ clause
provided in the agreement are, firstly, insisted upon to seek the remedy of Arbitration which is a self-contained exhaustive Code. The relief by
invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution should not ordinarily and frequently be allowed and resorted to. A
litigant should ordinarily be insisted upon to approach the Court of competent jurisdiction under the Arbitration Act and, only in exceptional
circumstances, permitted to approach this Court under Article 226 of the Constitution of India where it is shown that the respondent authorities have
miserably failed to discharge the statutory obligations arising out of an enactment. In the light of this settled position, the present petition cannot be
treated as an exception to this general rule, moreso, in view of the disputed claims having been raised therein.
Apart from the above perspective, it, needs, must be said that the question as to whether the claim of the petitioner is valid or not is itself arbitrable
and the dispute which has been raised by the parties is within the domain of the Arbitrator only. The only condition which is required to be satisfied
before issuance of directions for pointing the parties to arbitration proceedings is that there must be a dispute or difference between the parties and
that the arbitration clause provided in the agreement must apply to the disputes or differences. At this stage, the Court is not inclined to consider the
ultimate outcome of the disputes or differences and not to go into the merits or demerits of the dispute. The essential conditions necessary to direct the
parties to arbitration are:
i. The parties must have entered into an arbitration agreement or there existed a statutory arbitration clause;
ii. such agreement must have been entered into or being existence with respect to its subject matters sought to be enforced or adjudicated; and
iii. The differences contemplated in the agreement should have arisen between the parties.
If all the aforesaid conditions are satisfied, the Court has to refer the dispute to arbitration proceedings and the scope for enquiry, in that circumstance,
is very limited. All that the Court is required to see is whether there is an arbitration agreement between the parties and whether the dispute disclosed
by the parties is covered by such arbitration agreement. If the answer to both these questions is in the affirmative, as in the present case, the Court
has no option, but to direct the parties to have recourse to arbitration proceedings as envisaged in the agreement in vogue between the parties.
Hon’ble the Supreme Court in case titled ‘Wazir Chand v. Union of India; AIR 1967 SC 990, has, while dealing with the subject of
Arbitration, held as under:
“….. In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written
agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen
with regard to the subject matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing
that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation; that
question falls within the province of the arbitrator to whom the dispute is referred.â€
Given the above legal and factual position obtaining in the matter, it is crystal clear that there does exist a dispute between the parties in the instant
case which clearly falls within the ambit of the arbitration agreement governing the relationship of the parties, therefore, the same is certainly
arbitrable and is required to be agitated before the Arbitrator(s) only.
For all that has been said and done hereinabove, the instant petition is disposed of with liberty to the petitioner to seek reference of disputes, as
raised herein this petition, to the Arbitrator, strictly in accordance with the mandate of ‘Arbitration Clause’ stipulated in the agreement
governing the relationship of the parties. The time period, starting right from the date of filing of the Writ petition till one month from today, shall be
excluded for purpose of limitation, if any.
Writ petition disposed of as above, alongwith all the CMs pending therewith.
Both these Contempt petitions have been filed on behalf of the petitioner alleging violation/ disobedience of interim order dated 26th of November,
2014 passed by this Court in OWP No.1503/2014. The respondents have filed the Statement of Facts, enclosing therewith the consideration order(s)
passed with regard to the claim of the petitioner. That being so, the direction of this Court, subject matter of these Contempt petitions, stands complied
with and, as such, both these Contempt petitions shall stand closed, accordingly.
Registry to place a copy of this judgment on both the Contempt petitions as well.