JUDGMENT
Ar. Lakshmanan, C.J.
1. By consent of learned Counsel for the parties, both the writ appeal and the writ petition are taken up for hearing and disposed of by this common judgment.
2. The appellant herein is a firm engaged in contract business. The respondents assigned it with certain lease works viz., to remove the over matured Eucalyptus or jungle bushes etc., from the identified area covered under the lease within the stipulated time. The parties have entered into an agreement to that effect on 28-4-1998. Since the appellant has failed to
complete the lease work even within the extended period of contract, as per the terms of contract, not only the contract awarded to the appellant was terminated by one Mr. Veera Rajulu who according to the appellant is the then Head of C&LD, but also the security deposit and the EMD furnished by the appellant were also forfeited. It is made clear in the impugned order No. SCF/C&LD/PT-1/Rev/97-C-49825, dated 10-12-1999 that the termination of the contract is without prejudice to the Government’s rights to take action under any other clauses or sub-clauses of the agreement and to realise Government dues and losses and damages whatsoever under such clauses or sub-clauses.
3. Questioning the correctness of the termination order, the appellant filed W.P. No. 1425 of 2002 in this Court seeking a Writ of Certiorarified Mandamus calling for the records pertaining to the contract dated 30-12-1999 in proceedings No. SCF/ C&LD/PT-1/97-C-49825 and for a consequential direction directing the respondents to pay the appellant-petitioner compensation in a sum of Rs. 84,00,000/-sustained by it due to the termination of the above contract by the respondents 2 and 3.
4. This writ petition was dismissed at the admission stage by a learned single Judge of this Court on 12-2-2002 on the ground that the writ petition was filed without exhausting the remedy of alternative dispute resolving mechanism provided under the terms of contract and that the petitioner cannot approach this Court by invoking the jurisdiction of the Court under Article 226 of the Constitution of India without availing of such a remedy for the simple reason of getting speedy relief. It was also observed by the learned single Judge that that a direction cannot be issued for the enforcement of the contractual obligations under the extraordinary jurisdiction available
under Article 226 of the Constitution of India, more so when a specific clause for adjudication of all disputes is provided in the agreement that is concluded between the parties. The writ petition was accordingly dismissed as not maintainable. Aggrieved by the above order, the present appeal has been filed.
5. It is to be noticed in this context that the petitioner in the above Writ Petition No. 1425 of 2002 did not pray for quashing of the of the order of termination of contract dated 10-12-1999 passed by the Head L&RD. The only prayer made in the writ petition, as already noticed above, was to call for the records relating to the proceedings dated 30-12-1999 wherein the contract was awarded and to pay compensation of Rs. 84,00,000/- sustained by it due to the termination of the contract by the respondents 2 and 3. Since there was no prayer relating to quashing of the order dated 10-12-1999, after dismissal of the Writ Petition No. 1425 of 2002, the petitioner filed W.P. No. 7918 of 2002 in the month of April, 2002 seeking to quash the order dated 10-12-1999. However, the said writ petition viz., W.P.7918 of 2002 has been clubbed along with the present writ appeal and we have heard the arguments of Mr. S.N. Kirubanandam, learned Counsel appearing for Mr. M. Prabhakar, learned Counsel for the writ petitioner-appellant and Mr. C.V. Ramulu, learned Central Government Standing Counsel both in the appeal and the writ petition.
6. It is argued by the learned Counsel for the writ petitioner-appellant that the learned single Judge has not noticed that the contract has been terminated abruptly without giving any opportunity to the appellant to present his case and without following the principles of natural justice. It is further submitted by the learned Counsel that there being a procedural irregularity in cancelling the contract, the writ petition
questioning the cancellation would lie under Article 226 of the Constitution of India as against the cancellation of the contract since the said action is arbitrary and also against the provisions of Article 14 of the Constitution of India. He, therefore prayed that the appeal and the writ may be allowed.
7. We are unable to countenance any one of the above submissions. As already noticed, the contract that has been entered into between the parties provides for a remedy by way of arbitration in the event of any dispute arising between the parties. Clause XXII of the Agreement dated 28-4-1998 reads:
“Settlement of disputes :–In the event of any such question, dispute or difference arising under this agreement or in any connection with this contract (except as to any matter, the decision of which expressly provided for in the contract) the same shall in the first place be specified and referred to Head, C& LD within specified time frame. If the decision of Head, C&LD is not acceptable to contractor he may approach Controller, SHAR within specified time whose decision shall be final and binding upon the contract.
In case the decision of the Controller is not acceptable to the contractor or Controller fails to give decision within specified time limit the contractor may approach the law Court for settlement of dispute after giving due written notice in this regard to the Controller.”
8. A close scrutiny of the above clause would only go to show that in the event of any dispute or difference arising against this agreement, the dispute shall be in the first place be specified and referred to the Head C&LD within the specified time frame and if the decision is not acceptable to the contractor or Controller or if the Controller fails to give decision within specified time limit, the contractor may approach the law Court for settlement of dispute after giving due written notice in
that regard to the Controller. Since there is an arbitration clause in the agreement itself, the petitioner, in our opinion, cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for the alleged quick relief. In our opinion, there is an effective alternative dispute resolving mechanism provided in the terms of contract and, therefore, the appellant without exhausting such a remedy cannot approach this Court by filing the writ petition. In our opinion, the writ petition is not maintainable.
9. Mr. Ratnulu, learned Central Government Standing Counsel submits that though the contract was terminated on 10-12-1999, the appellant has approached this Court after a period of more than two years and, therefore, the writ petition has to be dismissed on the question of laches. We do not propose to do so. It is open to the respondent-Union of India to raise this issue before the appropriate forum. We, therefore, now direct the appellant herein to first approach the Head, C&LD within four weeks from today and it is for the Head, C&LD to consider the claim made by the appellant and pass appropriate orders after affording opportunity to both parties. Liberty is reserved to both parties to file their claim petitions and counter-claim petitions before the Arbitrator and it is for the Arbitrator to consider both the claims and pass appropriate Award in accordance with the Arbitration Clause contained in the agreement.
10. It is brought to our notice that the contract was terminated by an Officer by name Sri Veera Rajulu who has signed the termination order in his capacity as Head C&LD. If that is so, the officer who passed the termination order cannot be an Arbitrator to resolve the dispute between the parties. It is settled law that a Judge cannot be a Judge and a Prosecutor. Therefore, it is open to the Union of India to nominate
some other Officer of the Branch to resolve the dispute between the parties including the question of limitation. We reserve liberty to the Union of India to raise the question of limitation along with the other issues.
11. The writ appeal is accordingly disposed of. In view of the order now passed in this writ appeal, the Writ Petition No. 7918 of 2002 has become infructuous. It is accordingly dismissed. There shall be no order as to costs.