# M/s CALSTAR STEEL LTD. & Anr v. NORTH EASTERN RAILWAY & Ors

- **Citation:** (2022) 5 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-20
- **Case number:** Writ C No. 7603 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-calstar-steel-ltd-anr-v-north-eastern-railway-ors-48535
- **Pages:** 12

## Headnote

(A) Arbitration Law - Arbitration and
Conciliation Act, 1996 - Sections 7,9 & 17 -
Interim measures ordered by arbitral
tribunal - arbitration is an important
alternative
dispute
redressal
process
which
needs
to
be
encouraged
-
availability of alternative remedy does not
preclude the High Court from entertaining
a writ petition in appropriate case - Court
while entertaining a writ petition has to
bear-in-mind the fact as to whether the
dispute so raised does not involve factual
issues which comprise complex questions
of fact. (Para -24,27 )

(B) Writ Jurisdiction - High Court should
not
exercise
its
extraordinary
writ
jurisdiction
when
an
efficacious
alternative remedy is available - is a Rule
of prudence and not a Rule of law - Rule of
alternative remedy is a Rule of discretion
and not a Rule of jurisdiction - Merely
because the Court may not exercise its
discretion, is not a ground to hold that it
has no jurisdiction- it will be for the High
Court to decide in the peculiar facts and
circumstances of each case whether it
should exercise its extraordinary writ
jurisdiction or not. (Para -28)

Certain dispute arose with respect to land
allotted to petitioners - manufacturing BG PSC
sleepers - excess possession of the land beyond
the land allotted to them - entailed to
correspondence being exchanged from time to
time - contract in writing executed between
respondents and petitioners - arbitration
clause
- petitioners signatories to the
agreement - issue in question itself arbitrable -
within the scope of arbitration clause which can
be
entertained
and
adjudicated
by
the
arbitrator.(Para -6,7,25 )

HELD:-
Dispute raised by parties centers
around
factual
issues
wherein
complex
questions
of
facts
are
involved
whose
determination requires oral evidence. Court
under Article 226 of the Constitution of India
cannot
make
any
enquiry
into
disputed
questions of fact while taking evidence. writ
petition not maintainable on the ground of
alternative efficacious remedy as provided under
Clause 23 of the agreement, leaving it open to
the petitioners to seek remedy as available
under Section 23 of the Act of 1996. (Para -30
)

Writ Petition dismissed. (E-7)

List of Cases cited:-

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)05ILR A378
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ C No. 7603 of 2022

M/s CALSTAR STEEL LTD. & Anr.
 ...Petitioners
Versus
NORTH EASTERN RAILWAY & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Ravi Kant, Sri Uday Gupta, Sri Adarsh
Bhushan

Counsel for the Respondents:
A.S.G.I., Sri Krishna Agarwal

(A) Arbitration Law - Arbitration and
Conciliation Act, 1996 - Sections 7,9 & 17 -
Interim measures ordered by arbitral
tribunal - arbitration is an important
alternative
dispute
redressal
process
which
needs
to
be
encouraged
-
availability of alternative remedy does not
preclude the High Court from entertaining
a writ petition in appropriate case - Court
while entertaining a writ petition has to
bear-in-mind the fact as to whether the
dispute so raised does not involve factual
issues which comprise complex questions
of fact. (Para -24,27 )

(B) Writ Jurisdiction - High Court should
not
exercise
its
extraordinary
writ
jurisdiction
when
an
efficacious
alternative remedy is available - is a Rule
of prudence and not a Rule of law - Rule of
alternative remedy is a Rule of discretion
and not a Rule of jurisdiction - Merely
because the Court may not exercise its
discretion, is not a ground to hold that it
has no jurisdiction- it will be for the High
Court to decide in the peculiar facts and
circumstances of each case whether it
should exercise its extraordinary writ
jurisdiction or not. (Para -28)

Certain dispute arose with respect to land
allotted to petitioners - manufacturing BG PSC
sleepers - excess possession of the land beyond
the land allotted to them - entailed to
correspondence being exchanged from time to
time - contract in writing executed between
respondents and petitioners - arbitration
clause
- petitioners signatories to the
agreement - issue in question itself arbitrable -
within the scope of arbitration clause which can
be
entertained
and
adjudicated
by
the
arbitrator.(Para -6,7,25 )

HELD:-
Dispute raised by parties centers
around
factual
issues
wherein
complex
questions
of
facts
are
involved
whose
determination requires oral evidence. Court
under Article 226 of the Constitution of India
cannot
make
any
enquiry
into
disputed
questions of fact while taking evidence. writ
petition not maintainable on the ground of
alternative efficacious remedy as provided under
Clause 23 of the agreement, leaving it open to
the petitioners to seek remedy as available
under Section 23 of the Act of 1996. (Para -30
)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. St. of J & K & anr. Vs Dev Dutt Pandit ,
(1999) 7 SCC

2. U.O.I. Vs Varindera Constructions Ltd. &
ors., (2018) 7 SCC 794

3. U.P.P.T.C. Ltd. & anr. Vs CG Power &
Industrial Solutions Ltd. anr. , AIR Online 2021
SC 243

4. Bal Krishna Ram Vs U.O.I. & anr. , 2020 (2)
SCC 442

5. P.N.B. & ors. Vs Atmanand Singh & ors.,
(2020) 6 SCC 256

(Delivered by Hon'ble Vivek Kumar Birla, J.
5 All. M/s CALSTAR STEEL LTD. & Anr. NORTH EASTERN RAILWAY & Ors.
379
&
Hon'ble Vikas Budhwar, J.)

1. This is a petition under Article 226
of the Constitution of India seeking
following reliefs:-

(a) Issue a writ, order or
direction/declaration in the nature of
mandamus or any other appropriate writ,
order or direction for call of the records of
the present case from the Respondents; and

(b) Issue a writ, order or
direction/declaration in the nature of
mandamus or any other appropriate writ,
order or direction directing that the
Impugned
Order
dated
30.12.2021
[ANNEXURE
NO.XXXIII]
is
wholly
arbitrary, illegal and contrary to well
established legal principles and being so
also amount to a serious violation of the
Fundamental Rights of the Petitioner No.2
and further direct the Respondents to
forthwith amend the Agreement dated
05.09.2014
[ANNEXURE
No.XV]
to
include with effect from the year 2016, land
admeasuring 1122.59 sq. mtrs. in addition
to 5414.40 sq. mtrs. Already allotted in
terms of the Joint Inspection Report dated
04.04.2016 [ANNEXURE No.XX]; and

(c) Issue a writ, order or
direction in the nature of certiorari or any
other appropriate writ, order or direction
quashing the Impugned Order dated
30.12.2021
[ANNEXURE
No.XXXIII]
being wholly arbitrary, illegal and contrary
to well established legal principles and
amount to a serious violation of the
Fundamental Rights of the Petitioner No.2;
and

(d) Award costs of the petition
and Counsel's fee of the Petitioners.

Perusal of the reliefs as sought in
the present writ petition reveals that the
petitioners are insisting for writ order or
direction/declaration
in
nature
of
mandamus or any other appropriate writ
order
or
declaring
the
order
dated
30.12.2021 arbitrary, illegal as well as
contrary well established legal principles
and in violation of the fundamental rights
of the petitioner no. 2 and to further direct
the respondents herein to forthwith amend
the agreement dated 5.9.2014 so as to
include it w.e.f. the year 2016 ad-measuring
1122.59 square meters in addition to
5414.40 square meters already allotted in
terms of Joint Inspector Report dated
4.4.2016.

2. As per the pleadings so set forth in
the writ petition the petitioner no.1 claims
itself to be a company engaged in
manufacturing
of
PSC
Sleepers
for
railways and registered with Government
of India, Ministry of Micro, Small and
Medium Enterprises as a MSME.

3. Petitioners have further pleaded
that for the purposes of manufacturing
Brand
Gauge
Monoblock
Concrete
Sleepers
contract
was
executed
on
27.4.1998 between the Railway Board on
one hand and the petitioner no.1 on the
other hand. It has further been pleaded that
from time to time fresh contracts have been
entered into on 31.12.2002, 14.12.2009 and
11.6.2019.

4. Agreements were also executed
between the respondents herein and the
petitioners from time to time including the
agreement dated 5.9.2014 which finds
place at page 278 of the paper book
containing Clause 23 at page 281.

"23. पक्षकारोूं के बीच करारनामोूं मे
भदए गए नीलामी नोभटस मे पक्षोूं के अभधकारो
और दाभयत्वोूं अथवा प्रस्तुत इसके भकन्ही
380 INDIAN LAW REPORTS ALLAHABAD SERIES
धाराओूं या र्तों के उद्देश्य तथा आर्य के सूंबूंध
मे कोई भववाद या मतिेद उत्पन्न होने पर,(ऐसी
मामले को छोडकर भजनके सम्बि में इस करार
में भवर्ेष रूप से व्यवस्था है।) तत्कालीन
महाप्रबिक,
प वोत्तर
रेलवे
द्वारा
भकसी
राजपभत्रत रेल अभधकारी को भनयुन्धक्त भववाचक
(आबीटरेटर) को एक मात्र भववाचक को सूंदभिशत
कर भदए जायेगे और उसका भनणशय पक्षकारोूं के
भलए अूंभतम भनणाशयक एवूं आबद्धकर होगा। इस
करार के सूंबूंध में महाप्रबिक से प वोत्तर रेलवे
प्रर्ासन का प्रधान अभिप्रेत होगा।"

5. Heard Sri Uday Gupta through
online mode assisted by Sri Ravi Kant and
Sri Adarsh Bhushan, learned counsels for
the petitioners and Sri Krishna Agarwal
learned counsel for the respondents.

6. Learned counsels for the petitioners
have argued that certain dispute arose with
respect to the land so allotted to them for
manufacturing BG PSC sleepers and excess
possession of the land beyond the land
allotted to them entailed to correspondence
being exchanged from time to time.

7. As per learned counsels for the
petitioners, a contract in writing had been
executed between the respondents and the
petitioners on 27.4.1998 with respect to
execution of the contractuals/obligations
wherein the area of the land so allotted to
the petitioner no.1 by the respondents was
5414.40 square meters and the petitioners
on the basis of the same enjoyed the
benefits of the said land for manufacturing
purposes and paid annual licence fee of
Rs.5,02,103/-. Subsequently, as per the
provisions contained in the contract dated
27.4.1998, there was an increase of
payment of annual licence fee 10%
annually which swell to Rs.27,40,119/-. It
has further been argued by the learned
counsel for the petitioners that by virtue of
the communication dated 3.11.2006, the
petitioners were informed that petitioners
were in possession of 964.34 square meters
of additional land and steps were to be
undertaken to get the said additional land
included in the contract. It has further been
argued that the same was disputed by the
petitioners on 10.2.2007 and on 27.2.2007
another communication was issued to the
petitioners mentioning that an amount of
Rs.6,75,423/- has been deducted from the
bill so raised by the petitioners on the
pretext that the petitioners were
in
possession
of
extra
land.
Various
correspondences were also extended by the
petitioners, one of the same being dated
24.10.2007 admitting the fact that the
petitioners are possessing 144 square
meters of additional land.

8.

Eventually
a
fresh
formal
agreement was executed renewing the
parent contract wherein the licenced land
was shown to be 5414.40 sq. mtrs. It has
also been argued that the petitioners
disputed the said fact regarding possession
of the land being 5414.40 sq. mtrs vide
letter dated 15.1.2006 and thereafter a joint
inspection
team
was
constituted
compromising of the representative of the
petitioner company and the authorised
officers of the railways which conducted
joint spot inspection on 4.4.2016 wherein it
was found that the petitioners were in
possession of 1122.59 square meters of
extra land. Even it has also come on record
that a letter was written by the petitioners
to the railways on 16.5.2016 to regularise
1122.59 square meters on extra land and on
27.1.2018, petitioners vide covering letter
remitted licence fee for extra land treating
1122.59 square meters for the year 2016-17
and 2017-18. It has also been placed on
record that the petitioners company also
5 All. M/s CALSTAR STEEL LTD. & Anr. NORTH EASTERN RAILWAY & Ors.
381
made request for allotment of said extra
part of land in their favour.

9. On 15.10.2019 Chief Engineer of
the railways sent a communication to the
Senior Divisional Engineer Coordination
Eastern Railways, Lucknow clearly setting
out the fact that in joint inspection 1122.59
Sq. mtrs. of extra land was found in
possession of the petitioners. Further the
petitioner company also requested for
allotment of the said land and also
submitted lay out plan which mentioned
that the extra land would be 1863.34 sq.
mtrs. Thereafter, on 18.2.2021 an order was
passed demanding licence fee from the
petitioners treating extra land as 4156.87
sq. mtrs. since 2006-07.

10. Being aggrieved against the same,
petitioners herein instituted Writ Petition
No.17230 of 2021 M/s Calstar Steel Ltd. &
another Vs. North Eastern Railway seeking
following reliefs:-

a) Call for the records of the
present case from the Respondent-North
Eastern Railway; and

b)
Issue
a
writ,
order
or
direction/declaration in the nature of
mandamus or any other appropriate writ,
order or direction directing that the
impugned communication dated 18.02.2021
and 15.06.2021 are wholly arbitrary,
illegal and contrary to well established
legal principles and being so also amount
to a serious violation of the Fundamental
Rights of the Petitioner No.2 and further
direct
the
Respondent-North
Eastern
Railway to forthwith amend the Agreement
dated 05.09.2014 to include with effect
from the year 2016, land admeasuring
1122.59 sq. mtrs. In addition to 5414.40 sq.
mtrs. already allotted in terms of the Joint
Inspector Report dated 04.04.2016 ; and

c) Issue a writ, order or direction
in the nature of certiorari or any other
appropriate
writ,
order
or
direction
quashing the impugned communication
dated 18.02.2021 and 15.06.2021 being
wholly arbitrary, illegal and contrary to
well established legal principles and
amount to a serious violation of the
Fundamental Rights of the Petitioner No.2;
and

d) Award costs of the petition and
Counsel's fee of the Petitioners.

11.

On
7.10.2021
this
Court
proceeded to pass the following order and
relevant extract is quoted below:

"It is not in dispute that extra
land was in possession of the Company
over and above 5414.40 sq. meters in
relation to which contract was executed in
its favour. The main dispute is regarding
the extent of extra land in possession of the
Company. It is evident that initially the
respondent alleged that the extra area was
964.34 sq. meters as mentioned in the
communication
dated
03.04.2006
addressed to the Company. The Company
disputed the same. At a later point of time,
in October, 2015, the respondent claimed
that the extra area is 4165.87 sq. meters.
Again the Company disputed the same by
raising a written protest. Thereafter, a joint
inspection was carried out on 04.04.2016,
in which it transpired that extra land in
possession of the Company is 1122.59 sq.
meters. Thereafter, the Company requested
for including the said area in the
agreement. It is also evident that the
respondent
renewed
the
licence
on
05.09.2014 for an area 5414.40 sq. meters
without settling the issue relating to extra
land used by the Company. In due course of
time, the Company started paying licence
fee by treating the additional area as
382 INDIAN LAW REPORTS ALLAHABAD SERIES
1122.59 sq. meters as was found in joint
inspection and also made request for
allotment of 1863.34 sq. meters of extra
land over and above the area licensed
under the contract. While the said request
remained pending, the impugned demand
has been raised in which the finding of the
joint inspection report dated 04.04.2016
has not been noted nor considered nor even
the stand of the petitioner which was there
before the respondent in shape of several
protest letters and representations.

At this stage, Sri Rajnish Kumar
Rai on query made by the Court as to
whether the respondent is ready to pass a
fresh order after considering the joint
inspection report and other relevant material
submitted that the respondent shall pass a
speaking order in this regard within such time
as may be directed by this Court.

Accordingly and having regard to
the stand taken by learned counsel for the
respondent before this Court, we dispose off
the writ petition as follows:

(a) The Company shall file a fresh
representation
along
with
supporting
material and true attested copy of the instant
order before the respondent within two weeks
from today.

(b)
On
receipt
of
the
representation, the competent authority shall
examine
the
representation,
the
joint
inspection report and other relevant evidence
and, thereafter, pass a speaking order within
a further period of four weeks.

(c) The impugned demand shall
abide by the decision that shall be taken on
the representation. In case, the Company
defaults in making representation within two
weeks, as stipulated above, the instant order
shall stand discharged and the writ petition
would be treated to be dismissed."

12. Thereafter, it appears that the
petitioners preferred representation before
the railways and the same has been rejected
by virtue of the order dated 30.12.2021
holding as under:-

पैरा (xviii) आपके अनुरोध पर
भदनाूंक 08.11.2021 को व्यन्धक्तगत सुनवाई की
जा चुकी है।

पैरा (xix) आपके द्वारा प्रस्तुत भकये
गये साक्ष्य, व्यन्धक्तगत सुनवाई में भदये गये तकश
एवूं सिी उपलब्ध कागजातो का गहन अध्ययन
करके माननीय उच्च न्यायालय के द्वारा ररट सूं०-
17230/2021
मे
पाररत
आदेर्
भदनाूंक
07.10.2021 के अनुपालन में भनम्न भनणशय भदया
जाता है-

(I) फमश द्वारा 2006 से ही क भलूंग टैंक
का भनमाशण करके मैटेररयल एवूं स्लीपर रखने
हेतु अभतररक्त ि भम पर अभतक्रमण भकया गया
है। परन्तु उक्त ि भम का सही माप, सिी पक्षो के
साथ सूंयुक्त भनरीक्षण न होने के कारण, वतशमान
में प्रमाभणत नहीूं भकया जा सकता। अतः
432वगशमीटर
के
अभतक्रमण
(फमश
द्वारा
स्वीकायश) को 01.06.2006 से (रेलवे द्वारा उक्त
मद के सम्बि मे प्रथम पत्र की भतभथ) 2014 तक
(करारनामें के नवीनीकरण तक) भलया जाना
उभचत है, परन्तु वषश 2006-07 से 2016 तक
432वगशमीटर ि भम पर टैंक का बनाना स्वीकार
भकया गया है जबभक 432 वगशमीटर 3 टैंको का
आन्तररक क्षेत्रफल 3 x 9 x 16 है। जबभक
वास्तभवक रूप में इन टैंको को बनाने के भलए
28.40 x 16.62=472 वगशमीटर की ि भम का
इस्तेमाल भकया गया है। अतः 472 वगशमीटर
ि भम का लाइसेन्स र्ुल्क तथा भलन्धिडेटेड डैमेज
देय होगा।

(ii) वषश 2014 मे पुराने लाइसेन्स के
करारनामें (5414.40 वगशमी०) का नवीनीकरण
भकया गया था, भजस करारनामें में अभतररक्त
ि भम अभतक्रभमत होने का कोई वणशन नहीूं है।
माननीय उच्च न्यायालय ने िी उक्त पर भटप्पणी
की है। परन्तु मौज द साक्ष्योूं एवूं आपके पत्र
5 All. M/s CALSTAR STEEL LTD. & Anr. NORTH EASTERN RAILWAY & Ors.
383
भदनाूंक 10.02.2007 के आधार पर यह स्पष्ट
होता है भक आपके द्वारा 472 वगश मी० अभतररक्त
ि भम वषश 2006 से उपयोग मे थी।

(iii) भदनाूंक 04.04.2016 के सूंयुक्त
जाूंच ररपोटश में पाये गये अभतक्रमण एररया
1122.59 वगशमी० यह भसद्ध करता है भक फमश
द्वारा प वश रेलवे ि भम पर अभतक्रमण भकया गया
था। उक्त 1122.59 वगशमीटर अभतररक्त ि भम का
लाइसेन्स र्ुल्क वषश 2016 से फमश द्वारा जमा
भकया जा रहा है।

(iv) वषश 2006-07 से 2016 तक 432
वगशमीटर ि भम पर टैंक का बनाना स्वीकार भकया
गया है जबभक 432 वगशमीटर 3 टैंको का
आन्तररक क्षेत्रफल 3 x 9 x 16 है। जबभक
वास्तभवक रूप में इन टैंको को बनाने के भलए
28.40 x 16.62 =472 वगशमीटर की ि भम का
इस्तेमाल
भकया
गया
है।
अतः
भदनाूंक
10.02.2007 से 04.04.2016 तक 472 वगशमीटर
ि भम का लाइसेन्स र्ुल्क तथा भलन्धिडेटेड डैमेज
देय होगा।

13. Challenging the order now the
petitioners are before this Court.

14.
 Learned
counsels
for
the
petitioners have argued that that the order
under challenge is perverse contrary to
material on record and even in fact is in
violation of principles of natural justice.

15. According to learned counsel for
the petitioners reliance and reference so
made by the respondents upon R.D.S.O.
letter dated 15.7.2005 without confronting
the same with petitioners and making as
one of the basis for passing of the order in
challenge vitiates the entire proceedings.

16. In nutshell argument of learned
counsel for the petitioners is to the effect
that the order under challenge is liable to be
set aside and matter be remanded back to
the railways to decide a fresh after
furnishing the necessary documents which
were made the basis of passing the order
which is under challenge.

17. Sri Krishna Agarwal learned
counsel for the respondents has at the very
outset argued that the present writ petition
is not maintainable as the petitioners has an
alternative efficacious remedy of taking
recourse to arbitration as contemplated in
Clause
23
of
the
agreement
dated
15.5.2014. According to him disputed
question of facts are involved in the present
petition which are of complex nature and
requires
production
of
documentary
evidence which cannot be resorted to in the
present proceedings.

18. On being confronted with the said
position learned counsel for the petitioners
could
not
dispute
the
existence
of
alternative efficacious remedy by means of
arbitration. However, according to the
learned counsel for the petitioners, the
petitioners can though take recourse to
arbitration but as the respondents are
insisting for the payment of annual licence
fees for the excess land so shown to be
occupied by the petitioners being 1050 sq.
mtrs. for the period from 15.7.2005 to
23.6.2014,
thus,
according
to
them
arbitration may not be efficacious remedy.

19. We have heard the arguments of
the learned counsel for the petitioners,
learned counsel for the respondents and
perused the record.

20. The Parliament in exercise of
powers as conferred therein enacted an Act
by the name in the nomenclature of
Arbitration and Conciliation Act, 1996 (In
short Act of 1996) in order to consolidate
and amend the law relating to domestic
384 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitration,
international
commercial
arbitration and enforcement of foreign
arbitral awards as also to define the law
relating to conciliation and for the matters
connected therewith or incidental thereto.

21. For the kind perusal of this Court
Sections 7, 9 and 17 of the Act of 1996 are
being quoted below-

7. Arbitration agreement.--(1) In
this Part, "arbitration agreement" means
an agreement by the parties to submit to
arbitration all or certain disputes which
have arisen or which may arise between
them in respect of a defined legal
relationship, whether contractual or not.

(2) An arbitration agreement may
be in the form of an arbitration clause in a
contract or in the form of a separate
agreement.

(3) An arbitration agreement
shall be in writing.

(4) An arbitration agreement is in
writing if it is contained in--

(a) a document signed by the
parties;

(b) an exchange of letters, telex,
telegrams
or
other
means
of
telecommunication
1
[including
communication through electronic means]
which provide a record of the agreement;
or

(c) an exchange of statements of
claim and defence in which the existence of
the agreement is alleged by one party and
not denied by the other.

(5) The reference in a contract to
a document containing an arbitration
clause constitutes an arbitration agreement
if the contract is in writing and the
reference is such as to make that
arbitration clause part of the contract.

9. Interim measures, etc., by
Court.--3 [(1)] A party may, before or
during arbitral proceedings or at any time
after the making of the arbitral award but
before it is enforced in accordance with
section 36, apply to a court--

(i) for the appointment of a
guardian for a minor or person of unsound
mind
for
the
purposes
of
arbitral
proceedings; or

(ii) for an interim measure of
protection in respect of any of the following
matters, namely:--

(a)
the
preservation,
interim
custody or sale of any goods which are the
subject-matter
of
the
arbitration
agreement;

(b) securing the amount in
dispute in the arbitration;

(c) the detention, preservation or
inspection of any property or thing which is
the subject-matter of the dispute in
arbitration, or as to which any question
may arise therein and authorising for any
of the aforesaid purposes any person to
enter upon any land or building in the
possession of any party, or authorising any
samples to be taken or any observation to
be made, or experiment to be tried, which
may be necessary or expedient for the
purpose of obtaining full information or
evidence;
(d) interim injunction or the appointment of
a receiver;

(e) such other interim measure of
protection as may appear to the Court to be
just and convenient, and the Court shall
have the same power for making orders as
it has for the purpose of, and in relation to,
any proceedings before it.

(2)
Where,
before
the
commencement of the arbitral proceedings,
a Court passes an order for any interim
measure of protection under sub-section
(1), the arbitral proceedings shall be
commenced within a period of ninety days
5 All. M/s CALSTAR STEEL LTD. & Anr. NORTH EASTERN RAILWAY & Ors.
385
from the date of such order or within such
further time as the Court may determine.

(3) Once the arbitral tribunal has
been constituted, the Court shall not
entertain an application under sub-section
(1),
unless
the
Court
finds
that
circumstances exist which may not render
the remedy provided under section 17
efficacious.]

17. Interim measures ordered by
arbitral tribunal.--(1) A party may, during
the arbitral proceedings or at any time
after the making of the arbitral award but
before it is enforced in accordance with
section 36, apply to the arbitral tribunal--

(i) for the appointment of a
guardian for a minor or person of unsound
mind
for
the
purposes
of
arbitral
proceedings; or

(ii) for an interim measure of
protection in respect of any of the following
matters, namely:--

(a)
the
preservation,
interim
custody or sale of any goods which are the
subject-matter
of
the
arbitration
agreement;

(b) securing the amount in
dispute in the arbitration;

(c) the detention, preservation or
inspection of any property or thing which is
the subject-matter of the dispute in
arbitration, or as to which any question
may arise therein and authorising for any
of the aforesaid purposes any person to
enter upon any land or building in the
possession of any party, or authorising any
samples to be taken, or any observation to
be made, or experiment to be tried, which
may be necessary or expedient for the
purpose of obtaining full information or
evidence;

(d) interim injunction or the
appointment of a receiver;

(e) such other interim measure of
protection as may appear to the arbitral
tribunal to be just and convenient, and the
arbitral tribunal shall have the same power
for making orders, as the court has for the
purpose of, and in relation to, any
proceedings before it.

(2) Subject to any orders passed
in an appeal under section 37, any order
issued by the arbitral tribunal under this
section shall be deemed to be an order of
the Court for all purposes and shall be
enforceable under the Code of Civil
Procedure, 1908 (5 of 1908), in the same
manner as if it were an order of the Court.]

22. The Hon. Supreme Court in the
case of State of J & K and another Vs.
Dev Dutt Pandit (1999) 7 SCC page 339
in para 23 has observed as under:-

"23. Arbitration is considered to
be an important Alternative Disputes
Redressal
process
which
is
to
be
encouraged because of high pendency of
cases in the courts and cost of litigation.
Arbitration has to be looked up to with all
earnest so that litigant public has faith in
the speedy process of resolving their
disputes by this process. "

23. Following the said judgments the
Hon. Apex Court in the case of Union of
India Vs. Varindera Constructions Ltd.
and others (2018) 7 SCC 794 in para 12
has observed as under:-

"The primary object of the
arbitration is to reach a final disposition in
a
speedy,
effective,
inexpensive
and
expeditious manner. In order to regulate the
law regarding arbitration, legislature came
up with legislation which is known as
Arbitration and Conciliation Act, 1996. In
order to make arbitration process more
effective, legislature restricted the role of
courts in case where matter is subject to the
386 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitration. Section 5 of the Act specifically
restricted the interference of the courts to
some extent. In other words, it is only in
exceptional circumstances, as provided by
this Act, the court is entitled to intervene in
the dispute which is subject matter of
arbitration. Such intervention may be
before,
at
or
after
the
arbitration
proceeding, as the case may be. In short,
court shall not intervene with the subject
matter of arbitration unless injustice is
caused to either of the parties."

24. Hon. Supreme Court in the above
noted judgments have consistently held that
arbitration is an important alternative
dispute redressal process which needs to be
encouraged.

25. Here in the present case, learned
counsel for the petitioners have not
disputed the fact that their exists an
arbitration clause and further they are
signatories to the agreement which contains
arbitration clause and the issue in question
itself is also arbitrable and within the scope
of
arbitration
clause
which
can
be
entertained
and
adjudicated
by
the
arbitrator.

26.
 Learned
counsels
for
the
petitioners have placed reliance upon the
judgment
of
Uttar
Pradesh
Power
Transmission
Corporation
Ltd.
and
another Vs. CG Power and Industrial
Solutions Ltd. another AIR Online 2021
SC 243 so as to contend while referring to
paragraph 67 which reads as under:-

It is well settled that availability
of an alternative remedy does not prohibit
the High Court from entertaining a writ
petition in an appropriate case. The High
Court may entertain a writ petition,
notwithstanding the availability of an
alternative remedy, particularly (1) where
the writ petition seeks enforcement of a
fundamental right; (ii) where there is
failure of principles of natural justice or
(iii) where the impugned orders or
proceedings
are
wholly
without
jurisidiction or (iv) the vires of an Act is
under challenge. Reference may be made to
Whirlpool Corporation v. Registrar of
Trade Marks, Mumbai and others reported
in AIR 1999 SC 22 and Pimpri Chindhwad
Municipal Corporation and Ors. V. Gayatri
Construction Company and Ors. V. Gayatri
Construction Company and Ors. reported
in (2008) 8 SCC 172 : (AIR 2008 SC (Supp)
211) cited on behalf of Respondent No.1.

27. Undisputably availability of
alternative remedy does not preclude the
High Court from entertaining a writ
petition in appropriate case. However, this
Court while entertaining a writ petition has
to bear-in-mind the fact as to whether the
dispute so raised does not involve factual
issues which comprise complex questions
of fact whose determination requires oral
evidence or not.

28. In the case of Bal Krishna Ram
Vs. Union of India and another 2020 (2)
SCC 442 the Hon. Apex Court in paragraph
14 has observed as under:-

"14. It would be pertinent to add
that the principle that the High Court
should not exercise its extraordinary writ
jurisdiction when an efficacious alternative
remedy is available, is a Rule of prudence
and not a Rule of law. The writ courts
normally refrain from exercising their
extraordinary power if the Petitioner has
an alternative efficacious remedy. The
existence of such remedy however does not
mean that the jurisdiction of the High
Court is ousted. At the same time, it is a
5 All. M/s CALSTAR STEEL LTD. & Anr. NORTH EASTERN RAILWAY & Ors.
387
well settled principle that such jurisdiction
should not be exercised when there is an
alternative remedy available3. The Rule of
alternative remedy is a Rule of discretion
and not a Rule of jurisdiction. Merely
because the Court may not exercise its
discretion, is not a ground to hold that it
has no jurisdiction. There may be cases
where the High Court would be justified in
exercising its writ jurisdiction because of
some glaring illegality committed by the
AFT. One must also remember that the
alternative remedy must be efficacious and
in case of a Non-Commissioned Officer
(NCO), or a Junior Commissioned Officer
(JCO); to expect such a person to approach
the Supreme Court in every case may not
be justified. It is extremely difficult and
beyond the monetary reach of an ordinary
litigant to approach the Supreme Court.
Therefore, it will be for the High Court to
decide
in
the
peculiar
facts
and
circumstances of each case whether it
should exercise its extraordinary writ
jurisdiction or not. There cannot be a
blanket ban on the exercise of such
jurisdiction because that would effectively
mean that the writ court is denuded of its
jurisdiction to entertain such writ petitions
which is not the law laid down in L.
Chandra Kumar (supra). "

29. Further in the case of Punjab
National Bank and others Vs. Atmanand
Singh and others reported in (2020) 6
SCC 256 the Hon. Apex Court in
paragraphs no. 22, 23, 24, 25 held as
under:-

22. We restate the above position
that when the petition raises questions of
fact of complex nature, such as in the
present
case,
which
may
for
their
determination
require
oral
and
documentary evidence to be produced and
proved by the concerned party and also
because the relief sought is merely for
ordering a refund of money, the High Court
should be loath in entertaining such writ
petition and instead must relegate the
parties to remedy of a civil suit. Had it been
a case where material facts referred to in
the writ petition are admitted facts or
indisputable facts, the High Court may be
justified in examining the claim of the writ
Petitioner on its own merits in accordance
with law.

23. In the next reported decision
relied upon by the Respondent No. 1 in
Babubhai (supra), no doubt this Court
opined that if need be, it would be open to
the High Court to cross-examine the
affiants.
We
may
usefully
refer
to
paragraph 10 of the said decision, which
reads thus:

10. It is not necessary for this
case to express an opinion on the point as
to whether the various provisions of the
Code of Civil Procedure apply to petitions
Under Article 226 of the Constitution.
Section 141 of the Code, to which reference
has been made, makes it clear that the
provisions of the Code in regard to suits
shall be followed in all proceedings in any
court of civil jurisdiction as far as it can be
made applicable. The words "as far as it
can be made applicable" make it clear that,
in applying the various provisions of the
Code to proceedings other than those of a
suit, the court must take into account the
nature of those proceedings and the relief
sought. The object of Article 226 is to
provide a quick and inexpensive remedy to
aggrieved parties. Power has consequently
been vested in the High Courts to issue to
any person or authority, including in
appropriate cases any government, within
the jurisdiction of the High Court, orders
or writs, including writs in the nature of
habeas corpus, mandamus, prohibition,
388 INDIAN LAW REPORTS ALLAHABAD SERIES
quo warranto and certiorari. It is plain that
if the procedure of a suit had also to be
adhered to in the case of writ petitions, the
entire purpose of having a quick and
inexpensive remedy would be defeated. A
writ petition Under Article 226, it needs to
be emphasised, is essentially different from
a suit and it would be incorrect to
assimilate and incorporate the procedure of
a suit into the proceedings of a petition
Under Article 226. The High Court is not
deprived of its jurisdiction to entertain a
petition Under Article 226 merely because
in considering the Petitioner's right of
relief, questions of fact may fall to be
determined. In a petition Under Article 226
the High Court has jurisdiction to try issues
both of fact and law. Exercise of the
jurisdiction is no doubt discretionary, but
the discretion must be exercised on sound
judicial principles. When the petition raises
complex questions of fact, which may for
their determination require oral evidence to
be taken, and on that account the High
Court is of the view that the dispute should
not appropriately be tried in a writ petition,
the High Court may decline to try a petition
(see
Gunwant
Kaur
v.
Bhatinda
Municipality
[MANU/SC/0397/1969
:
(1969) 3 SCC 769]. If, however, on
consideration
of
the
nature
of
the
controversy, the High Court decides, as in
the present case, that it should go into a
disputed question of fact and the discretion
exercised by the High Court appears to be
sound and in conformity with judicial
principles, this Court would not interfere in
appeal with the order made by the High
Court in this respect.

This decision has noticed Smt.
Gunwant
Kaur
(supra),
which
had
unmistakably held that when the petition
raises complex questions of facts, the High
Court may decline to try a petition. It is
further observed that if on consideration of
the nature of the controversy, the High
Court decides to go into the disputed
questions of fact, it would be free to do so
on sound judicial principles. Despite the
factual matrix in the present case, the High
Court not only ventured to entertain the
writ petition, but dealt with the same in a
casual manner without adjudicating the
disputed questions of fact by taking into
account all aspects of the matter. The
manner in which the Court disposed of the
writ petition, by no stretch of imagination,
can qualify the test of discretion having
been exercised on sound judicial principles.

24. In Hyderabad Commercials
(supra), on which reliance has been placed,
it is clear from paragraph 4 of the said
decision that the Bank had admitted its
mistake and liability, but took a specious
plea about the manner in which the transfer
was effected. On that stand, the Court
proceeded to grant relief to the Appellant
therein, the account holder. In the present
case, however, the concerned officials of
the Bank have denied of being party to the
stated agreement and have expressly
asserted that the said document is forged
and fabricated. It is neither a case of
admitted liability nor to proceed against
the Appellant Bank on the basis of
indisputable facts.

25. Even the decision in ABL
International Ltd. (supra) will be of no
avail to the Respondent No. 1. This
decision has referred to all the earlier
decisions and in paragraph 28, the Court
observed as follows:

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
5 All. Om Prakash Vs. State of U.P. & Ors.
389
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 Corporation v. Registrar of
Trade
Marks
[MANU/SC/0664/1998
:
(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.

30. Applying the said judgements in
the facts of the present case, the Court finds
that the dispute so raised by the parties
centers around factual issues wherein
complex questions of facts are involved
whose determination requires oral evidence.
This Court in the present proceedings under
Article 226 of the Constitution of India
cannot make any enquiry into disputed
questions of fact while taking evidence.

31. Even otherwise once there exist
arbitration clause in the agreement dated
5.9.2014
so
executed
between
the
respondents one hand and the petitioners on
the other hand and the petitioners being
signatories of the same and are further not
disputing it and also admitting that the
dispute itself is clearly arbitrable then while
applying the principles of law as culled out
as Hon. Apex Court, this Court finds its
inability to entertain the present writ petition
as the petitioners have adequate efficacious
remedy of arbitration as provided in Clause
23 of the agreement dated 5.9.2014.

32. Nonetheless Arbitration and
Conciliation Act, 1996 is self contained code
wherein not only necessary safeguards have
been provided but also jurisdiction has been
vested with the competent court under
Section 9 of the Arbitration and Conciliation
Act, 1996 and under Section 17 of the same
so as to warrant interim protection in
suitable cases which are filed or pending
before it. Thus, the apprehension of the
petitioners that this Court in the present
proceedings can only be grant interim
protection is out of context as specific
remedy as discussed above is available to
the
petitioners
under Arbitration
and
Conciliation Act, 1996.

33. Resultantly, the present writ
petition is dismissed as not maintainable on
the ground of alternative efficacious remedy
as provided under Clause 23 of the
agreement dated 5.9.2014 leaving it open to
the petitioners to seek remedy as available
under Section 23 of the Act of 1996.

Needless to say that any of the
observations made in the present judgment
may not be construed to the expression that
this Court has adjudicated the matter on
merits.
----------
(2022)05ILR A389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ C No. 9000 of 2022

Om Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents