JUDGMENT
M. Katju, J.
1. This writ petition has been filed for a mandamus directing the respondents to release the Truck No. ASOI D 7984 belonging to the petitioner forthwith.
2. Heard learned Counsels for the parties.
3. It is alleged in paragraph 2 of the writ petition that the petitioner is the owner of the aforesaid truck vide registration certificate Annexure 1 to the writ petition. The Indian Oil Corporation engages the contractors for transportation of L.P.G. gas cylinders to various destinations and for this purpose the tenders are invited by the Indian Oil Corporation. The petitioner also gave his tender which was accepted and an agreement for the transport contract was entered into between the petitioner’s firm in which one Suresh Kumar is partner. True copy of one of such agreements is Annexure 2 to the writ petition. After the execution of this agreement four trucks were employed in the Indian Oil Corporation for the transportation of L.P.G. gas cylinders of the Indian Oil Corporation. In paragraph 7 of the writ petition it is alleged that after execution of the agreement the petitioner’s trucks were transporting the gas cylinders to various destinations according to the directions of the respondents without any complaint. On 21.5.2002, 306 cylinders were given by the Corporation from its Jhunsi bottling plant to the petitioner for transportation from Allahabad to Mirzapur. The cylinders were loaded in the truck at 6.15 p.m. The truck came out of the plant and proceeded towards Mirzapur for delivery. It is alleged in paragraph 10 of the writ petition that due to technical defect in the truck the driver stopped the truck near Hanuman temple towards left side of the road in between Jangiganj and Gopiganj in district Bhadohi. While driver was removing the technical defect, a heavy truck which was loaded with bamboos collided with the truck due to which the gas cylinders burst. The drivers of both the trucks died on the spot and a Khalasi received heavy burn injuries and was admitted in hospital where a dying declaration was recorded by the Magistrate and subsequently he also died. An F.I.R. of this incident was lodged by one Phool Chand at Police Station Gopiganj, district Bhadohi vide Annexure 3 to the writ petition. The petitioner sent letters dated 3.6.2002 and 7.6.2002 requesting the respondent No. 2 to make payment of the previous bills so that the payment may be made and two other trucks may be loaded according to the agreement. True copies of the letters are Annexures 4 and 5 to the writ petition. Another F.I.R. was lodged from petitioner’s side.
4. On 6.6.2002 the petitioner received a letter from the respondents that due to accident the cylinders were destroyed and the respondents had suffered a loss of Rs. 6,23,805/- and the petitioners are liable to pay the loss. True copy of the letter is Annexure 6 to the writ petition. The petitioner’s manager sent a letter dated 17.6.2002 stating that the accident was merely an Act of God and there was no fault of the driver or Khalasi and hence they are not liable to pay any damages. True copy of the letter is Annexure 7 to the writ petition. The petitioner’s truck is in custody of the respondents and are inside the plant. The respondents refused to release the truck unless the alleged damages are paid. The petitioner’s manager requested the respondents to make payment of the previous bills so that the bills of the diesel and pay of labourers may be given but nothing was done by the respondents. Security deposit and earnest money is also lying with the respondents. True copy of the bills are Annexure 8 to the writ petition. The petitioner’s manager sent a letter dated 17.6.2002 for payment of all the previous bills vide Annexure 9 to the writ petition but no reply was given by the respondents. The petitioner’s manager personally went to the respondents and requested for release of the two trucks but the respondents refused to release the same.
5. It is alleged that the respondents have no legal right to seize the trucks of the petitioner on the pretext that the petitioner has to pay the damages. Although there is an agreement that all disputes will be referred to the Arbitrator for the purposes of claim, damages/etc, it is alleged in paragraph 24 that in the agreement it is nowhere mentioned that in the event of an accident of the trucks of the petitioners they can be seized by the respondents. The petitioner states that the respondents are going to auction the trucks. Hence this petition.
6. A counter affidavit has been filed and we have perused the same. The agreement executed between the parties containing the arbitration clause is Annexure C.A. 1 to the counter affidavit. The respondents have urged that the matter shall be referred to the sole Arbitrator, namely, the Director, Marketing of the Corporation. By letter dated 16.8.2002 the General Manager of the U.P. State Office of the Corporation has referred the matter for arbitration vide Annexure C.A. 2. The respondents have alleged that the Corporation was made to suffer a serious loss on account of destruction of 306 gas cylinders and the petitioner is liable to pay the damages. In paragraph 9 it is stated that an application has been made under Section 9 of the Arbitration Act which is pending before the District Court, Allahabad.
7. In our opinion the respondents have no right to retain the truck. It is well settled that a truck can be detained only if there is statutory provision for the same. No doubt under Clause 35 of the agreement, which contains the arbitration clause any dispute or difference of any nature whatsoever or any claims cross-claim, counter-claim or set-off of the Corporation against the contractors or regarding any right, liability act, omission or account of any of the parties arising out of the agreement shall be referred to the Sole Arbitrator. However, we are of the opinion that the arbitration agreement does not entitle the respondents to detain the truck unless there is a statutory provision entitling the respondents to do so. Morever alternative remedy is not an absolute bar to a writ petition.
8. In Ram Singh v. State of U.P. 2000 UPTC 865 (vide paragraph 4) it was held that there is no power under the U.P. Trade Tax Act to detain the trucks which are carrying goods regarding which the sales tax authorities have reason to believe that the trade tax has not been paid or would not be paid. The sales tax authorities can detain the goods but not the truck because there is no provision for detaining the truck. This decision referred to many earlier decisions. In the present case we have not been shown any statutory provision entitling the respondent to detain the trucks. Following the above decisions this petition is allowed. The respondents are directed to release the trucks of the petitioner forthwith. However, regarding the claim for damages or claim of the petitioner for non-payment of the bills or any such matters referred to in Clause 35 of the agreement the matter shall be referred to the Sole Arbitrator.