Manmohan Sarin, J.@mdashPetitioner seeks a writ of certiorari to quash the order passed by the respondent transferring the allotment of the petitioner from booth No. 279 to another booth. Further, a writ of prohibition is sought to restrain the respondent and its officers from illegally and forcibly taking possession of the booth in question and terminating the agreement without following the due process of law.
2. Petitioner, who had been selected as Concessionaire for selling milk and milk products, was allotted milk booth Depot No. 279, located at Nehru Market, Pahar Ganj, New Delhi, vide allotment letter No. 7-3(1459)/2000-V dated 21.10.2000. Petitioner claims that after the allotment, he commenced his business from 23.11.2000 and satisfactorily carried out the same. There was no dispute between the parties till 27.2.2001. Petitioner was not notified of any complaint or short-comings in the running and functioning of the milk booth. Petitioner claims that vide letter dated 21.11.2000, petitioner was informed that his depot was converted to Concessionaire full day Milk Booth, in terms of which petitioner could sell other products also.
3. Learned counsel for the petitioner submits that suddenly on 27.2.2001, petitioner was asked to vacate the booth, without any show cause notice. Petitioner thereupon moved this Court and obtained ex parte stay on 3.3.2001. Learned counsel submits that the action of the respondent in seeking to evict the petitioner and to transfer his allotment to another booth is arbitrary, unfair, malafide and in violation of Article 14 of the Constitution of India.
4. Learned counsel submits that respondents have no right under the contract to transfer the petitioner from one booth to the other. Even for termination, a notice of one week in required to be given, which was not given. Learned counsel submits that writ should be entertained since respondent/Delhi Milk Scheme is state within the meaning of Article 12 of the Constitution of India. The purported exercise of power to transfer the booth is beyond the contract. Accordingly, the respondent be deemed to have acted under statutory powers. Learned counsel, Therefore, submits that this Court would have jurisdiction under Article 226 of the Constitution of India to interfere in the matter. Counsel submits that the action of the respondents is in violation of principles of natural justice and for this reason also Court should interfere and come to the rescue of the petitioner.
Learned counsel for the petitioner places reliance on
5. Learned counsel submits that the invocation of the arbitration agreement in this case would not sub-serve the ends of justice, as the arbitrator would be the nominee of the respondent and he could not be expected to render justice to the petitioner. Learned counsel submits that the action of the respondent was malafide one as it was being taken under the direct instructions of the Minister of State for Food Processing and the officers of the respondent are being hard pressed to get the booth vacated from the petitioner. He submits that a small person, like the petitioner, on account of interference by those placed at high position in the echelons of power, is sought to be deprived of his livelihood.
6. Learned counsel for the respondent submits that an application (CM. 5317/2001) u/s 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) has been moved. Admittedly, there is a contract between the parties dated 4.10.2000, which has arbitration agreement in the following terms:-
"All disputes and differences arising out or in any way touching or concerning to the agreement, whatsoever shall be referred to the Sole Arbitration of the General Manager, Delhi milk Scheme, or his nominee. It will be no objection to any appointment that the General Manager, or the person appointed by him is a Government servant that had to deal with the matters to which this agreement relates and that in the course of his duties, as such Government servant he had expressed views all or any of the matter in disputes or differences. The award of the General Manager, Delhi Milk Scheme or the Arbitrator so appointed shall be final and binding on the parties to this, agreement."
The arbitration agreement is couched in very wide terms and would cover any dispute or difference arising out of or even touching or concerning the agreement. The challenge to the transfer of milk booth would fall within its ambit.
7. Learned counsel for the respondent submits that in view of the provisions of Section 8 of the Act, this would be a case, which was squarely covered by arbitration agreement and no interference was warranted by the Court in exercise of writ jurisdiction. He relied on
8. Having perused the pleadings, noted the rival contentions and submissions, as above, as also the authorities cited, the question which requires consideration is whether the petitioner is bound to invoke the efficacious remedy provided u/s 8 of the Act. Admittedly, there is an arbitration agreement, which governs the relationship between the parties qua the allotment and functioning of the petitioner, as Concessionaire for selling the products of the respondents. The disputes that have arisen between the parties are post contractual in nature. It is not a case of challenge to any action in a pre contractual state, where the decision making process is being assailed. Respondent contends that the petitioner has committed breach of the agreement terms by selling products other that milk and remaining absent himself from the booth. Besides, the booth being found closed during working hours. Counsel submits that, Therefore, the respondent''s action in transferring the petitioner from present site to another booth is really a lenient view being taken of the matter as the respondent was well entitled even to terminate the agreement. Petitioner on the other hand contends that there was no dispute and the whole action is a malafide exercise of power.
9. Be that as it may, one thing is clear that there is a contract, having an arbitration agreement, which governs the relationship between the parties as regards the allotment and functioning of the milk booth. Section 8 would operate as a bar to exclude entertainment of the petition. The Supreme Court in Kalpana Kothari (Smt.) v. Sudha Yadav (Smt.) and Ors. (Supra) has described Section 8 of the Act as all comprehensive provision of mandatory character enabling the parties to have the matter related to the dispute referred to arbitration in terms of the arbitration agreement.
In P. Anand Gajapathi Raju and Ors. v. P.V.G.Raju (Dead) and Ors. (Supra), the Supreme Court has noted that the requirement to refer the disputes to arbitration u/s 8 is peremptory. The following observation from the said judgment may be usefully reproduced:--
"The language of Section 8 is peremptory. It is, Therefore, obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement. Nothing remains to be decided in the original action or the appeal arising there from. There is no question of stay of the proceedings till the arbitration proceedings conclude and the award becomes final in terms of provision of new Act. All the rights, obligations and remedies of the parties would now be governed by the new Act, including the right to challenge the award. The Court to which the party shall have recourse to challenge the award would be the Court as defined in Clause(e) of Section 2 of the new Act and not the Court to which the application u/s 8 of the new Act is made. An application before the Court u/s 8 merely brings to the Court notice that the subject matter of the action before it is the subject matter of an arbitration agreement."
10. There is also merit in the submission of the respondent that the petitioner has failed to give particulars, as required for making out a case of malafides. Besides, malafides were alleged against a person, who has not been imp leaded. Secondly, there is nothing in the original record, which would lend support to the petitioner''s allegations of malafide and bias. Petitioner''s contention that the transfer was illegal and not permissible under the terms of the Contract are matters, issues and disputes, which can be gone into in arbitration and decided on merits. In these circumstances, I allow the application u/s 8 of the Act and direct that the disputes between the parties be referred to arbitration and hold that the present writ petition would not be maintainable. However, with a view to enable the petitioner to seek his relief or protection by resorting to Section 9 of the Act or from the arbitration, the interim protection granted to the petitioner shall ensure to his benefit for a period of three weeks from today.
The writ petition is dismissed with these directions.
