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Judgment
Caveat No. 1882 of 2015
Caveat stands discharged.
LPAOW No. 48/2015, MP No. 1/2015—This LPA is directed against the order dated 28.10.2015 passed by the writ Court in OWP No.
1580/2015 titled 'Manoj Ji and Company Pvt. Ltd. v. Union of India and Ors."" by virtue whereof writ Court while issuing notice, stayed
operation of the order dated 12.06.2015 passed by 1st Additional District Judge Jammu in terms whereof status quo was directed to be
maintained with respect to the operation of the railway out agency contract for Srinagar via Udhampur in case the contract had not been allotted to
any other contractor pursuant to NIT dated August, 2014. The impugned order passed by the writ Court on 28.10.2015 in OWP No. 1580/2015
is assailed on the ground that the learned writ Court has exercised writ jurisdiction in respect of a judicial order passed by 1st Additional District
Judge Jammu dated 12.06.2015 filed by appellant under Section 9 of J&K Arbitration and Conciliation Act, 1997 which is not maintainable. It is
contended that the proceedings before the trial Court are civil in nature and the order impugned in the writ petition is an order passed in Civil
proceedings. It is further contended that respondent No. 1 could not have maintained the writ petition and could not have invoked the extra-
ordinary jurisdiction of High Court to challenge a judicial order through the medium of a writ petition, more so, as respondent No. 1 was neither a
party to the agreement nor party in the petition filed under Section 9 of the Arbitration and Conciliation Act, 1997. Reliance is placed upon the
dictum of law propounded by the Hon'ble Apex Court in ""Radhe Sham and Anr. v. Chabbi Nath and Ors."" reported in (2015) 5 SCC 423
that judicial orders of Civil Courts are not amenable to writ jurisdiction under Article 226 of Constitution of India.
Heard learned counsel for the parties.
The Hon'ble Apex Court, while dealing with the nature of jurisdiction under Articles 226 and 227 of Constitution of India in ""Radhey Shyam
and Ors. v. Chabbi Nath and Ors."" reported in AIR 2015 SC 3269 held that the judicial orders of Civil Courts are not amenable to the writ
jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from jurisdiction under Article 226. Contrary view
taken in Surya Dev Rai's case reported in AIR 2003 SC 3044 has been overruled.
The same view was reiterated in Sh. Jogendra Singh Ji Vijay Singh Ji v. State of Gujarat and Ors. AIR 2015 SC 3623 that an order
passed by a Civil Court can only be assailed under Article 227 of the Constitution of India and an LPA appeal or an intra Court appeal in respect
of an order passed by the Single Judge dealing with an order arising out of proceedings before a civil Court would not lie before the Division
Bench. Emphasis was laid on the nature of order which the Division Bench would be required to ascertain from the facts of the case.
The dispute relates to operating of Railway Out Agency for Srinagar. Till 1947, the Railway Out Agency for Srinagar was being served from
Sialkot (now in Pakistan). Thereafter, with extension of Northern Railway Line to Pathankot, the Railway Out Agency for Srinagar was served
from Pathankot and with the extension of Railway line up to Jammu, Srinagar Railway Out Agency came to be served from Jammu. The Railway
Out Agency is regulated by an agreement executed between the northern railways and the Railway Out Agency and such agreement falls within the
purview of Indian Railway Code for Traffic (Commercial) Department issued by Ministry of Railways.
It appears that M/s. Shivam Auto Movers Pvt. Ltd., who is not a party to instant LPA, filed a suit for declaration assailing the NIT for allotment
of Railway Out Agency Srinagar served via Udhampur Railway Station for goods traffic. Along side the same an application was filed for grant of
temporary injunction restraining the respondents from allotting the contract for railway out agency. Learned Sub-Judge (CJM) Udhampur rejected
the application on the ground that M/s. Shivam Auto Movers Pvt. Ltd. had failed to establish a prima facie case for relief in its favour. The order of
rejection dated 27.05.2015 came to be challenged in appeal before learned District Judge Udhampur who found no merit in appeal and dismissed
the same in terms of order dated 30.05.2015. Admittedly, respondent No. 1 in the instant LPA namely Manoj Ji & Company Pvt. Limited was
not a party to these proceedings. Subsequently, the appellant appears to have filed a petition under Section 9 of J&K Arbitration and Conciliation
Act 1997 before 1st Additional District Judge Jammu against respondent Nos. 2 and 3 and other railway officials. In terms of order dated
12.06.2015, learned 1st Additional District Judge, Jammu directed maintaining of Status quo with respect to the operation of the Railway Out
Agency contract for Srinagar via Udhampur in case such contract had not been allotted to any other contractor pursuant to NIT dated August,
2014. The interim direction came to be extended in terms of order dated 9th September, 2015. That is where the matter rests. It appears that
respondent No. 1 was not a party to the proceedings under Section 9 of J&K Arbitration and Conciliation Act 1997 and it filed OWP No.
1580/2015 invoking writ jurisdiction of this Court and in the alternative supervisory jurisdiction of this Court to assail order dated 12.06.2015
passed by 1st Additional District Judge, Jammu under Section 9 of J&K Arbitration and Conciliation Act 1997. It would therefore, be appropriate
to ascertain the nature of proceedings before the writ Court so as to determine whether the instant LPA is maintainable.
Impugned order dated 12.06.2015 appears to have been passed by learned 1st Additional District Judge Jammu in a petition under Section 9
of J&K Arbitration and Conciliation Act, 1997 filed by the present appellant wherein it was averred that the appellant had been operating the
Railway Out Agency for Srinagar from the year 1919 when the railway station was located at Sialkot (Now in Pakistan) and that with the railways
reaching Pathankot and subsequently to Jammu, it was shifted to Pathankot and thereafter to Jammu. It was further averred in the petition that the
contract for out agency for Srinagar was being renewed/extended from time to time notwithstanding the extension of railway line and last renewal
of railway out agency agreement was up to January, 2015. Appellant, feeling aggrieved of non-renewal of the out agency agreement by
respondents despite the appellant's satisfactory performance, invoked the terms and conditions including an arbitration clause in the agreement. It
relied upon clause 11.2 providing for renewal of contract at the discretion of railway administration and reference of dispute to the sole arbitrator
stipulated in clause 16.0 of the agreement. It also relied upon an award passed by Arbitrator in an earlier dispute where in terms of award made
and published by Arbitrator on 28.01.1987, it was ruled that the respondents were not competent to refuse the renewal of the contract so long as
the work of the appellant was satisfactory and no increase in rates was sought for.
It was further averred in the petition that since the dispute related to renewal of contract and respondents 2 and 3 could not invite fresh tenders for
railway out agency held by the appellant, appellant's right for renewal had been jeopardised. Appellant accordingly invoked jurisdiction of the
District Court under Section 9 of J&K Arbitration and Conciliation Act 1997, on consideration whereof order dated 12.06.2015 directing
maintenance of status quo came to be passed by learned 1st Additional District Judge, Jammu. Order passed under Section 9 of J&K Arbitration
and Conciliation Act 1997 is appealable under Section 37 of the Act. Admittedly respondent No. 1 was not a party to the proceedings under
Section 9 of J&K Arbitration and Conciliation Act 1997 and the remedy available under Section 37 of the Act would not be available to him
without seeking leave of the Court. It is not in controversy that respondent No. 1 did not choose to approach the Court of learned 1st Additional
District Judge, Jammu for seeking impleadment and contesting the petition under Section 9 of J&K Arbitration and Conciliation Act 1997. It is
also not in dispute that respondent No. 1 did not seek leave from Appellate Court to file appeal against impugned order dated 12.06.2015. It,
instead, chose to file the petition under Article 226 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir and in the
alternative prayed for the petition being treated as one under Article 227 of Constitution of India read with Section 104 of Constitution of Jammu
and Kashmir. The relief claimed was for quashment of order dated 12.06.2015 passed by learned 1st Additional District Judge Jammu on the
petition of appellant filed under Section 9 of J&K Arbitration and Conciliation Act 1997 or in the alternative, to direct the respondents to allot out
agency to the petitioner in pursuance of NIT dated August, 2014. The language of Para-11 of the petition filed by respondent No. 1 leaves no
room for doubt that respondent No. 1 did not seek enforcement of any constitutional right.
It was aggrieved of impugned order dated 12.06.2015 passed by learned 1st Additional District Judge Jammu under Section 9 of J&K Arbitration
and Conciliation Act 1997 which, according to it, was totally beyond the scope of Section 9 of J&K Arbitration and Conciliation Act, 1997,
exceeding jurisdiction and liable to be quashed. Respondent No. 1 also did not dispute the proposition that the dispute relating to termination of
contract with regard to Srinagar Out Agency interse the appellant and respondent Nos. 2 and 3 was referable to arbitrator. It is, therefore,
manifestly clear that respondent No. 1 sought to establish a right to entitle it to the allotment of Railway Out Agency for Srinagar on the basis of
NIT dated August, 2014. The impugned order dated 28.10.2015 passed by the Writ Court being an order arising out of proceedings pending
before learned 1st Additional District Judge Jammu under Section 9 of the Arbitration and Conciliation Act, 1997 would be covered under Article
227 and not under Article 226 of the Constitution of India and in the wake of law laid down by Hon'ble Apex Court in Sh. Jogendra Singh Ji
Vijay Singh Ji v. State of Gujarat and Ors. (Supra), the instant LPA would not be maintainable. Having regard to the position emerging from
record on the file, it appears that the impugned order dated 28.10.2015 passed by the writ Court is unsustainable as the same does not relate to
enforcement of a constitutional or statutory right. The impugned order, thus, cannot be sustained and is liable to quashed. The petition before the
writ Court is also liable to be dismissed. Ordered accordingly.