STATE OF JAMMU AND KASHMIRversusGHULAM MOHD. DAR AND ANR.

                     STATE OF JAMMU AND KASHMIR                               A
                                          v.
                      GHULAM MOHD. DAR AND ANR.

                             NOVEMBER 20, 2003

                   I [V.N. KHARE, CJ. AND S.B. SINHA, J.]                     B

          Constitution of India, 1950 :

           Article 226-Exercise·ofjurisdiction in contractual disputes-Work
     contract between 'contractor and Government-Agreement containing C
     arbitration clause-However, writ petition filed by contractor before High
     Court for a qirection to Government to pay escalation charges allowed-
     Objectian regarding maintainability not considered by High Court-Held,
     it is well settled that writ of or in the nature of mandamus would not
     ordinar~ly issue for enfordng terms ofconditions ofa contract qua contract D
     and that High Court would not entertain a writ petition involving disputed
     questions offact-Judgment ofHigh Court set aside-On request ofparties
     arbitrator appointed-Arbitration.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2712 of
     1999.                                                        E
         From the Judgment and Order dated 14.10.98 of the Jammu and
     Kashmir High Comt in L.P.A. (OWP). No. 239 of 1998.

          Anis Suhrawardy for the Appellant.
                                                                               F
_j
         P.H. Parekh, Sameer Parekh and Sanand Ramakrishnan for the
     Respondent No. I.

          The following Order of the Court was delivered :
                                                                              G
          The appellant herein issued an advertisement inviting tenders for the
     works, namely, construction of Radiotherapy Mortuary workers facility,
     pump house and guard room. Respondent No. I herein responded to the
     said a~vertisement and submitted his tender, which was accepted by the
     appellant herein. An agreement was entered into between the parties on H
    2                      SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A   14.12.79. The agreement contained an arbitration clause. It appears that the
    respondent was able to complete the construction by November, 1983.
    Under such circumstances, he gave an application to the Chief Engineer
    wherein it was submitted that the escalation of 42% has not been paid in
    respect of certain items of which escalation is provided under the principal
B   agreement. However, the Chief Engineer informed the respondent that the
    escalation was applicable to all the items as per,th~ dec:i·Sioh- of the standing
    Finance Committee. On 4.4.1991 the respondent filed a petition in the High
    Court of Jammu and Kashmir seeking the mandamus that the appellant be
    directed to pay 42% escalation rates as approved under the supplementary
C   agreement and confirmed by the letter dated 5.5.1986 of the Chief
    Engineer.

           The learned Single Judge of the High Court allowed the writ petition
    and issued a direction in terms of the prayer made in the writ petition. A
    Letters Patent Appeal filed by the appellant was dismissed. It is against the
D   said judgment, the appellant is in appeal before us.

           It is not disputed that the contract agreement entered into by and
    between the parties contain an arbitration agreement. Furthermore, the
     respondent herein filed the aforementioned writ petition for enforcing a
E   contract qua contract. Although an objection has been taken as regards the
     maintainability of the writ petition by the appellant herein, the same
     unfortunately has not been considered by the High <;:ourt. It is well settled
    that writ of or in the nature of mandamus would not ordinarily issue for
    enforcing the terms and conditions of a contract qua contract. A writ of
    mandamus would issue when a question involving public Law character
F    arises for consideration. It is also well settled that the High Court would
    not entertain a writ petition involving disputed questions of fact. Keeping
     in view the aforementioned well settled principles of law, the impugned
    judgments cannot be sustained. They are set aside accordingly. The appeal
    is allowed. However, the parties appearing before us proposed that Justice
G   R.P, Sethi, a former Judge of this Court be appointed as a sole Arbitrator
    in terms of the arbitration agreement. Accordingly, we request Justice R.P.
    Sethi to act as the sole Arbitrator . Learned counsel appearing for the parties
    also submitted that no plea as regards limitation would be raised before
    the learned Arbitrator. The parties would be at liberty to approach Justice
H   R.P. Sethi for the aforeme!ltioned purpose. The remuneration payable to
                                STATE v. GHULAM MOHD. DAR                           3
           the Arbitrator shall be decided by the Arbitrator himself. We may make A
           it clear that the fees payable to the learned Arbitrator would be decided
           by him and the Award, if any, would be filed before the High Court.

                  In the aforesaid view of the matter, we set aside the judgment under
           challenge. The appeal is allowed.
                                                                                         B
                           ?I
           R.P.                                                      Appeal allowed.




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