- (1.)PETITIONER who is a licencee of the Railway Administration to run a tea stall in Soni Railway Station under Jhansi Division of the North Central Railway feels aggrieved by issuance of a demand notice Annexure P-1 dated 17.7.2006 whereby he has been directed to deposit a sum of Rs. 36,000/-. Grievance of the petitioner is that from time to time he has deposited all the licence fee. Petitioner is licenced to establish only a tea shop without a running trolley. However, licence fee is claimed now from the petitioner, inter alia contending that the demand notice issued is unjust and arbitrary, petitioner has deposited all the licence fee and Station Master is restraining the petitioner from running the stall in an arbitrary manner by using force and is compelling the petitioner to close the stall on the ground that licence fee is not paid, petitioner seeks interference in the matter.
(2.)KU . Sudha Shrivastava, learned counsel for petitioner by taking me through the various documents filed by her in the matter invites my attention to the following judgments and argued that action of the respondents in demanding the licence fee as indicated in Annexure P-1 and using coercive steps by stopping the petitioner from carrying out the business is arbitrary and unjust, violative of the fundamental rights to life guaranteed to the petitioner under Article 21 of the Constitution, therefore, she seeks interference in the matter. The judgments relied upon by Ku. Sudha Shrivastava are :
(i) ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others [(2004) 3 SCC 553] to contend that even if the disputed facts are involved, writ petition is maintainable; (ii) Satya Narayan Pandey and others v. State of M.P. and others [2004 (1) MPHT 46] to contend that even though alternate remedy is available, writ petition is maintainable; (iii) M/s. Sen Brothers, Engineers and Contractors and others v. The State of West Bengal [AIR 2007 NOC 307 Calcutta] and (iv) M/s. KMC Constructions Ltd. v. National Highways Authority of India, Delhi and another [AIR 2007 NOC 480 Andhra Pradesh]. These judgments are mainly cited to show that in such a matter, interference in a petition under Article 226 of the Constitution is permissible.

Refuting the aforesaid, Shri V.K. Bhardwaj, learned counsel appearing for railway administration points out that petitioner is only licenced to run a tea shop and the shop in question has been allotted to him as per the agreement Annexures R-5/10. It is pointed out by him that as per the agreement, principle and provisions for enhancement of licence fee is provided, it is the policy of the railway administration that licence fee is to be enhanced from time to time. The enhancement of licence fee was considered in various petitions filed before the Allahabad High Court in the case of M/s. Budh Singh and Sons and others v. The Union of India and others and the Supreme Court in various Special Leave Petitions which were disposed of vide Annexure R-5/12, placing reliance on these judgments Shri V.K. Bhardwaj points out that as enhancement of licence fee is on the basis of the policy decision of the railway administration and as the matter is upheld by the Allahabad High Court and Supreme Court, petitioner cannot have any grievance. That apart in the agreement as per para 30 Annexure R-5/10, Shri Bhardwaj points out that there is a arbitration clause in the agreement and therefore petitioner has to take recourse of the remedy of arbitration only and writ petition directly for resolving the dispute arising out of the agreement Annexure R-5/10 is not maintainable. He points out that in the present case there are disputed facts and a writ petition directly before this Court is not maintainable.

(3.)HAVING heard learned counsel for the parties, it is thought appropriate to consider the preliminary objections raised by the respondents/railway administration with regard to maintainability of this petition. Dispute in the present case is as to whether petitioner has paid licence fee in accordance with the agreement and subsequently enhanced by the railway administration from time to time or not? Even though petitioner contends that he has deposited the entire amount, railway administration refutes the aforesaid and according to Shri V.K. Bhardwaj, learned counsel for respondents, as on date, a sum more than Rs. 30,000/- is required to be paid by the petitioner. That being so, it is a case where serious dispute regarding amounts of licence fee payable by the petitioner exists. That apart, the question as to whether the petitioner is required to maintain a trolley is also in dispute between the parties. Clause 30 of the agreement Annexure R-5/10 clearly contemplates that all dispute between the parties arising out of agreement has to be resolved by way of arbitration. In the cases relied upon by Ku. Sudha Shrivastava, learned counsel for petitioner, the questions considered were that even in disputed matter pertaining to the contract writ petition can be entertained in certain circumstances. However, the question of maintainability of a writ petition when a arbitration clause is incorporated in the contract has been considered by the Supreme Court in the case of State of U.P. and others v. Bridge and Roof Company (India) Ltd. [1996 (6) SCC 22], in the aforesaid case it has been held by the Supreme Court that when the contract itself provides the mode of settlement of a dispute arising for the contract, parties should follow and adopt that remedy and invoking the extra ordinary jurisdiction in a petition under Article 226 of the Constitution is not permissible. It has been held by the Supreme Court that when an efficacious remedy existence in the contract itself. It is good ground for the Writ Court to decline exercise of jurisdiction under Article 226 of the Constitution. It has been held by the Supreme Court in the aforesaid case under :
"The said article was not meant to supplant the existing remedies at law but only to supplement them in certain well-recognised situation. The prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was not seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. Indeed, the very resort to Article 226 - whether for issuance of mandamus or any other writ, or direction ~ was misconceived. (Emphasis supplied) This case was again considered in the case of ABL International Ltd. (supra) relied upon by Ku. Sudha Shrivastava, learned counsel for petitioner and after considering the judgment in para 14, the Supreme Court has observed as under : "It is well known that if the parties to a dispute had agreed to settle their dispute by arbitration and if there is an agreement in that regard, the Courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration unless of course both the parties to the dispute agree on another mode of dispute resolution." (Emphasis supplied)