Harish Tandon, J. - (1.) It is undisputed that the railways permitted the petitioners to occupy the godowns/shed at the railway's land upon payment of the licence fees. The said agreement was executed with the predecessor of the present petitioner and it is not in dispute that the demand is raised upon the petitioner in terms of the aforesaid agreement. The petitioner says that the licensee under the said agreement is now known as the petitioner by virtue of the change of name having permitted by the Registrar of Companies and, therefore, the rights and liabilities accrued under the said agreement are applicable to the petitioner as well. There cannot be any quarrel to the aforesaid proposition for the simple reason that the petitioner itself submitted under the said licence agreement and invited the Court to consider whether the clauses contained therein have been implemented by the railway authorities in the manner as it should have been.
(2.) The present writ petition is filed when the railways issued a circular incorporating the policy guidelines relating to enhancement of licence fees in respect of the railway plots/lands on February 10, 2005. Subsequently, the demand was raised upon the petitioner on 19th October,2013 demanding the occupational charges at the revised rate from 1995-96 to 2012-13. The writ petition proceeds that the said circular cannot be made applicable with retrospective effect and, therefore, the occupational charges /licence fees at the revised rate cannot be claimed from an anterior date. It is not in dispute that the original agreement contains an arbitration clause and it is submitted by the learned Advocate for the respondents that the subsequent agreement extending the period also contained an arbitration clause. Be that as it may, the Court can safely proceed on the premise that the agreement contains an arbitration clause and the first and foremost point which arose in the instant matter whether the writ petition is maintainable.
(3.) It is to be reminded that the parties can agree to a consensual jurisdiction to resolve their disputes arising from or touching the agreement/contract. The dispute must be considered in conjunction with the facts involved and if it comes within the ambit of the arbitration clause, the Court should respect the agreement of the parties and relegate them to exhaust such forum. If the dispute or its essence has no nexus or relation with the contract or something which is absolutely alien or foreign thereto it is not obligatory on the part of the party to submit to the jurisdiction of private fora, but the redressal can be had from the normal system of dispensation of justice, i.e. by approaching the Court. It would be fundamentally wrong to say that the moment an agreement contained an arbitration clause irrespective of the nature of the dispute since it arose between the parties to the contract, the parties should be relegated to such private forum and they are debarred form approaching the Court. This Court is oblivion of the proposition of law that the exercise of powers under Article 226 by the High Court is a basic structure of the Constitution and cannot be done away with by the framers of law. Though there cannot be an absolute bar in maintaining the writ petition, even in existence of an efficacious alternative remedy, but the Court imposes self-restraint and refuses to exercise such discretion. It is thus not a rule of rigidity nor can be bent or relaxed, but a rule of discretion, than of compulsion. The Court can entertain the writ petition even in existence of an alternative remedy and, therefore, this Court does not find that because of the arbitration clause, the power of the High Court under Article 226 has been impliedly and/or expressly taken away. The reference can be made to a judgment of the Apex Court in case of Union of India & Ors. vs. Tantia Construction Private Limited, 2011 5 SCC 697 wherein an identical point was raised that because of the incorporation of an arbitration clause in an agreement, the Writ Court should not entertain the writ petition in these words: "Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.";