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Judgment
M. A. Chowdhary, J
The Petitioner, through the medium of the instant Petition, has challenged the Order bearing No. 145-APMC/Sgr/14/350 dated 19th of December, 2014 issued by the Deputy Director (K), Horticulture (P&M)/ Chief Executive APMC, Parimpora, whereby the Petitioner has been directed to deposit within one week an amount of Rs. 9,05,000/- lying outstanding against him on account of:
(i) an amount of Rs.2,08,000/- for an extended period of gate entry contract of F&V Market Parimpora, Srinagar issued in favour of the Petitioner vide No: - 01-APMC/Sgr/14/1-3 dated 1st of April, 2014; and
(ii) an amount of Rs.6,97,000/- for collection of gate entry fee in F&V Market Parimpora, Srinagar under the garb of order of status quo for the period from 3rd of May, 2014 till 13th of June, 2014, i.e., 41 days.
The precise case of the Petitioner is that he, in terms of communication dated 1st of July, 2013, was allotted the contract for collection of gate entry fee at Fruit and Vegetable Market, Parimpora by the Respondents for the period from 3rd of July, 2013 to 2nd of April, 2014 pursuant to NIT dated 18th of June, 2013, having found him the highest bidder in the tendering process. It is stated that the Petitioner deposited the 50% bid amount with the Respondents as was directed by the Respondents, whereafter an agreement between the parties was executed on 17th of July, 2013. It is pleaded by the Petitioner that he, thereafter, started collecting the gate entry fee as per the agreed terms and conditions, however, the Respondents did not allow him to collect the same on Sundays, thereby causing huge loss to the Petitioner amounting to more than six lac rupees.
The Petitioner claims to have filed a representation before the Respondents for seeking the redressal of his grievance, however, no action with respect thereto was taken despite lapse of considerable period of time and, instead the Petitioner was threatened that he will not be allowed to collect gate entry fee at all on spot. Aggrieved thereby, the Petitioner appears to have filed Writ Petition bearing OWP No. 48 of 2014 before this Court, wherein this Court, in terms of Order dated 23rd of January, 2014, directed the Respondents to maintain present status of the Petitioner. The said Writ Petition was finally decided by this Court on 11th of June, 2014 with a direction to the Petitioner to file a representation before the Respondents and the Respondents, in turn, were directed to consider and decide the same. In compliance of the aforesaid Order passed by this Court, the Petitioner claims to have made a detailed representation before the Respondents, however, the same was rejected vide impugned Order dated 19th of December, 2014 and the Petitioner has been directed to deposit the balance amount of Rs.9,05,000/-.
The Respondents have filed their Objections in opposition to the Writ Petition filed by the Petitioner, wherein it has been stated that the Petitioner has made misrepresentation of facts in his Writ Petition, inasmuch as, there was no condition in the tender notice/ agreement which barred the Petitioner from collecting entry fee at entry points of F&V Market Parimpora, Srinagar on Sundays. It is further pleaded that the Petitioner was not stopped by anyone to collect the gate entry fee and that he was himself collecting the same on all seven days of the week, including Sundays. The allegation that the gate entry fee on Sundays was collected by the Fruit Association, Parimpora has been vehemently denied by the Respondents.
Despite calling the case in the pre-lunch session as well as in the post-lunch session, none appeared on behalf of the Petitioner. Even on last so many hearings, the case has been repeatedly adjourned at the request of the learned Counsel appearing for the Petitioner.
Heard learned Counsel for the Respondents and perused the pleadings on record.
Pursuant to a decision taken by the Respondents to outsource the gate entry fee collection for Fruit and Vegetable Market, Parimpora, Srinagar, tenders were floated inviting bids. The Petitioner responded to the aforesaid tender notice and was able to bag the contract in terms of allotment order dated 1st of July, 2013. The Petitioner was to collect entry fee for a period of nine months from 3rd of July, 2013 to 2nd of April, 2014 in consideration of an amount of Rs.36,71,000/-, half of which was to be deposited by the Petitioner by or before 2nd of July, 2013. On 17th of July, 2013, the Petitioner and the Respondent No.4 executed a licence agreement, wherein a condition was incorporated to the effect that Rs.18,35,500/-, i.e. 50 percent of the bid amount, was to be paid in advance and the rest of the amount was to be paid in two instalments of Rs.9,17,750/- through post-dated cheques, with a further condition that in the event of failure of depositing the 2nd and 3rd instalments within the prescribed time, i.e. by 3rd of September, 2013 and 3rd of November, 2013, the amount shall carry interest @ 18 percent per annum. This agreement also provided a covenant, being covenant No.8, that in case of any dispute or interpretation of any clause arising out of the agreement, the same shall be referred to the Directorate of Agricultural Marketing for arbitration and decision of the said Directorate/ Arbitrator shall be final and binding upon the parties to the licence agreement.
The Petitioner, in terms of the contract, collected the gate entry fee for the agreed period and claims to have deposited the entire amount due to him. The Petitioners’ case is that he was not allowed to collect gate entry fee on Sundays through the agreed period, i.e., from the date of allotment till 2nd of April, 2014 and, if he is to be believed, he was not allowed to collect gate entry fee for 40 days, i.e., Sundays, during the contract period and that the Respondents had unjustifiably prevented the Petitioner from collecting gate entry fee on the afore-stated dates and, in the process, exposed him to avoidable loss. The Petitioner, on 15th of January, 2014, was issued a communication by the Respondent No.4, calling upon him to deposit the gate entry fee of Rs.3,37,750/- by 18th of January, 2014, as he was shown to have made payments to the tune of Rs.33,33,250/- and the amount of Rs.3,37,750/- was shown as outstanding towards him.
Aggrieved of the afore-stated communication, the Petitioner filed OWP No. 48/2014 before this Court seeking quashment of the aforesaid communication dated 15th of January, 2014, with further direction to the Respondents to allow him to collect the gate entry fee on Sundays also. A direction was also sought upon the Respondents to allow the Petitioner to collect the entry fee and to extend the contract period beyond April, 2014 till the loss is fully compensated in view of the restriction of Sundays by the Respondents. During the currency of the aforesaid Writ Petition, the Respondents granted extension to the Petitioner’s contract for a period of one month w.e.f. 2nd of April, 2014. The aforesaid Writ Petition came to be decided by this Court vide Judgment dated 11th of June, 2014 holding that the Respondents shall accord consideration to the assessment and payment of compensation, if any due to the Petitioner on account of any instruction or direction preventing the Petitioner to collect gate entry fee on Sundays during the contract period and that the Petitioner would be well advised to make a representation giving details of his claim and submit necessary documents to reimburse his claim so that the Respondents would be in a position to consider his case. It was further provided that the amount, if any due from the Petitioner for the period he had collected gate entry fee beyond the period of extended 30 days, shall be deducted from the compensation if any assessed and is found due to the Petitioner.
The Petitioner seems to have filed a representation which was decided by the Respondent No.4 vide No. 01-AMPC/Sgr/14/327 dated 25th of February, 2014, thereby informing the Petitioner that as per the agreement executed between the parties, there was no stipulation not to collect gate entry fee on Sundays and that he had been authorized to collect the gate entry fee in accordance with the terms and conditions laid down in the NIT and as per the agreement executed between the parties; that he had to collect the gate entry fee on all days, including Sundays and nobody had stopped him from collecting the gate entry fee on Sundays. The Respondents, however, vide No. 01-APMC/Sgr/14/01-03 dated 1st of April, 2014, made a temporary arrangement of gate entry fee of F&V Market, Parimpora, Srinagar for the year 2014-15, granting the Petitioner one month’s extension, including Sundays as well, as per the prescribed rate, i.e., Rs.4,08,000/- per month with the terms and conditions as laid down in the NIT for the year 2013-14. This amount was stated to have been deposited by the Petitioner.
The Petitioner is stated to have filed another representation in terms of the Judgment of this Court passed in OWP No. 48/2014 to the Respondents and the Respondents, vide communication No. 145-APMC/Sgr/14/350 dated 19th of December, 2014, rejected the said representation and directed the Petitioner to pay the balance amount of Rs.9,05,000/- as outstanding against him on account of:
i. an amount of Rs.2,08,000/- held by him for an extended period of gate entry contract at F&V Market, Parimpora, Srinagar issued in his favour vide No. 01-APMC/Sgr/14/1-3 dated 1st of April, 2014; and
ii. an amount of Rs.6,97,000/- which stands against him on account of collection of gate entry fee in F&V Market, Parimpora, Srinagar under the garb of status quo order for the period from 3rd of May, 2014 i.e. 41 days.
Aggrieved of this communication dated 19th of December, 2014, the Petitioner has filed the instant Writ Petition raising almost the same points which he had raised in his earlier Petition that he was not allowed to collect the gate entry fee on Sundays by the Respondents and that he suffered losses on that count.
Essentially, the dispute raised by the Petitioner is with regard to not allowing him to collect the gate entry fee of the F&V Market, Parimpora, Srinagar on Sundays during the period he had been allotted the contract in view of the NIT and the subsequent agreement executed between the parties with respect thereto. Having a closer look upon the communication dated 1st of July, 2013, whereby the tender for outsourcing the gate entry contract had been approved in favour of the Petitioner and the licence agreement executed as a follow up action on 17th of July, 2013, there is no condition that the Petitioner shall not collect the gate entry fee on Sundays. The Petitioner has not substantiated his claim by placing any document on record, so as to prove as to how he had been restrained from collection of the gate entry fee during the first contract period. The contention raised by the Petitioner in his Petition that the New Kashmir Fruit Association had been allowed by the Respondents to collect gate entry fee appears to be fallacious in view of the fact that the receipts that he had placed on record issued by the New Kashmir Fruit Association on different dates were with regard to collection of some amount as Special Association Fund and this cannot be stated to be the amount towards collection of gate entry fee. All the documents which have, now, been raised by the Petitioner in this Petition with regard to alleged recovery of Special Association Fund Receipts were within the knowledge of the Petitioner, who had not raised the same in his earlier Petition.
Moreover, in view of the licence agreement, to which both the sides are signatories and the conditions therein being binding on both the sides, as per covenant No.8, there is an arbitration clause which provides ‘that in case of any dispute, the matter shall be referred to the Director, Agricultural Marketing for arbitration and the decision of the said Arbitrator shall be final and binding on the parties to the agreement’. Therefore, in view of the arbitration clause in the licence agreement providing an alternate efficacious remedy in the form of arbitration, the Writ Petition before this Court is also not maintainable.
Besides, since the Petitioner has raised a disputed question of fact as to whether he had been restrained from collecting the gate entry fee on Sundays, which has been denied by the Respondents and there being no documentary proof with regard to such a denial to the Petitioner, this question cannot be gone into by this Court invoking extraordinary Writ jurisdiction. It is settled legal position that a Writ Petition involving disputed questions of facts cannot be adjudicated under Writ jurisdiction by this Court. The Hon’ble Supreme Court in case titled ‘ABL International Limited & Anr. v. Export Credit Guarantee Corporation of India Limited & Ors.’, reported as ‘(2004) 3 Supreme Court Cases 553’, has clearly observed that a Writ Petition involving serious disputed questions of facts, which require consideration of evidence which is not on record, will not normally be entertained by a Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
For the foregoing reasons and observations made hereinabove, this Writ Petition is found to be devoid of any merit. Accordingly, the same is dismissed, along with the connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated.