STATE OF JAMMU AND KASHMIR versus GHULAM MOHD. DAR AND ANR.

Citation: [2003] SUPP. 6 S.C.R. 1 · Decided: 20-11-2003 · Supreme Court of India · Bench: V.N. KHARE, S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

_j 
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·of jurisdiction 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 of conditions of a contract qua contract D 
and that High Court would not entertain a writ petition involving disputed 
questions of fact-Judgment of High Court set aside-On request of parties 
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. 
P.H. Parekh, Sameer Parekh and Sanand Ramakrishnan for the 
Respondent No. I. 
The following Order of the Court was delivered : 
F 
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 
I. 
... 
. J 
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 afores

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