Rashid Ali Dar ORDER
Rashid Ali Dar, J.
1. Instant petition has been filed by the petitioner under Section 9 of the J & K Arbitration and Conciliation Act, 1997 for directing the maintenance of status quo with regard to Island Retreat Park Cafeteria and Kiosks at Srinagar.
2. Facts, for grant of relief as put forth in the petition are that:
i) By virtue of deed of license dated 08-08-2013 executed by the respondent on behalf of the Governor of the State, the petitioner herein along with one Sajad Ahmad Wani S/o. Mohammad Younis R/o. Khanyar, Sriangar was allotted and handed over the possession of the assets/building situated at Hung Sonamarg for operating and conducting Island Retreat Park Cafeteria and Kiosks for a period of five years w.e.f. 2012 up to the month of November 2017. In terms of the said deed of license, petitioner was also authorized to use the premises as a camping site.
ii) That even though the said deed of license was initially granted by the respondents jointly in favour of the petitioner and Sajad Ahmad Wani but later on Sajad Ahmad Wani within the knowledge and notice from the respondents relinquished his entire rights and interests in favour of the petitioner vide relinquishment deed dated 02-09-2015.
iii) That the aforesaid license has been granted by the respondents in favour of the petitioner pursuant to being adjudicated as highest bidder in response to a notice inviting tenders (NIT) vide No. CEO/SDA/NIT/1219-23 dated 17-12-2012 after completing all conditions stipulated by the respondents.
iv) That the petitioner even though granted license deed dated 08-08-2013, for a stipulated period of five years w.e.f. 08-01-2013 was for various reasons, prevented to utilize the licensed premises for beneficial use despite of the huge bid amount paid by her coupled with a substantial investment made on the premises by setting up of one or the other facilities thereon.
v) That huge loss was caused to the petitioner by preventing her to utilize the licenses premises as camping site in terms of the agreement despite of the petitioner having made huge investment for purchase of relevant equipment's. It is also submitted that for the convenience of the tourists and visitors to the Park the petitioners without any financial support of the respondents and out of her own resources erected three pre fabricated washrooms in the premises.
vi) That during 2014 floods, the only bridge connecting the Island Park premises with the green road was completely washed away along with the furniture and fixtures purchased and installed by the petitioner therein,. However the said bridge was erected in 2015 but no relief was granted to the petitioner by the State Government thereby depriving her altogether. It is also submitted that no relief whatsoever was granted in respect of the petitioner for the business loss caused by the blockade of the only road to Sonamarg due to the cloud burst at Gagangeer in the year 2015 triggering huge landslides in the area. It is further submitted that petitioner was also not granted any relief package despite huge loss caused to her due to another cloud burst at Baltal in which several pilgrims of Amarnath Ji Yatra were got killed, thus adversely affecting the business of the petitioner.
vii) That the petitioner had also faced a huge loss due to prolonged closure of the entire Kashmir Valley for six long months in the year 2016. In the meantime, license period got expired and the petitioner knocked the doors of respondents for extension of the license. The respondents vide communication No. CEO/SDA/681 dated 30-03-2018 proceeded to convey the decision of the authority to the petitioner for grant of extension of license for one season only with 10% escalation against the bid amount subject to the clearance of all previous outstanding.
viii) That the petitioner has already cleared all previous outstanding. The said restricted period has been fixed against the petitioner even when the Chief Executive Officer in terms of his recommendations has sought for extension of the period of license in favour of the petitioner by a period of five years for the reasons aforesaid including the treatment given to other similar cases. That in other cases the extension has been granted for a period of more than one year. In this regard, petitioner places on record copy of communications dated 31-08-2017 and 30-03-2018.
ix) That the petitioner has already approached the respondents for grant of the same treatment as given to other similarly situated persons. But the request of petitioner was unheeded by the respondents and they restricted the period of license for one single season which is stated to expire by the end of the current tourist season. It is further submitted that the respondents had not referred the dispute to the arbitrator within the ambit of Arbitration agreement between the parties.
3. Respondents have filed the objections in which they have stated that:
a) The NIT was issued by Sonamarg Development Authority for outsourcing of Island Retreat Park Hunge with facilities of Kiosks Cafeteria cum Restaurant and shelter shed at Hung, Sonamarg for a period of five years upto ending 11/2017 starting bid Rs. 11.50 lacs vide No. CEO/SDA/Nit/1182-90 dated 04-12-2012 with securing deposit of Rs. 2,40000.00. Accordingly five tenders were received and the highest bid were offered by Mr. Sajad Ahmad Wani and Ors. To the bid amount of Rs. 15,45,00/- for a period of five years and accordingly after fulfillment of required formalities, the letter of intent was issued in favour of the highest bidder on a bid offered amount of Rs. 15,45,000.00 vide respondent office letter No. CEO/SDA/NIT/1219-23 dated 17-12-2012. The concerned deposited 50% of bid amount through Bank Draft vie No. 157961 dated 07-01-2013.
b) That the decisions are being taken by the Outstanding Committee headed by Director Tourism, Kashmir (Chairman Outsourcing Committee, Kashmir Division) and the decision whatever taken by the committee is to be implemented in letter and spirit. The application has been put before Outsourcing committee to deliberate upon the matter and subsequently the instant case has been deliberated on 16-10-2017 and the outsourcing committee decided as:
"It was decided by the committee that extension will be granted for one season with 10% escalation against bid amount, subject they should clear all previous outstanding."
The petitioner deposited the previous outstanding and subsequently one tourist season 2018 was granted in her favour on sympathetic consideration as otherwise the term of contract was already expired.
c) That the notice under the provision of J & K Arbitration and Conciliation Act was received from petitioner and in response to that respondent authority vide No. CEO(/SDA/2018/1384-88 dated 14-08-2018 informed the concerned that the role of Arbitrator is required when there is any dispute amongst parties involved but the instant case has been considered and one extension has been granted. Besides the doors of respondent authority is always open but the petitioner has neither responded nor attended the office of respondent authority for resolving any kind of dispute.
d) That the petitioner filed an application under Section 11 of the Arbitration and Conciliation Act which was dismissed as withdrawn from the court of District Judge Ganderbal vide order dated 06-11-2018.
4. The petitioner has annexed with this petition following documents:
i) Copy of the deed of license dated 08-08-2013 by virtue of which petitioner and one Sajad Ahmad Wani was allotted and handed over the possession of the assets/building situated at Hung Sonamarg for operating and conducting Island Retreat Park Cafeteria and Kiosks for a period of five years w.e.f. 2012 up to the month of November 2017.
ii) Copy of the representation dated 22-08-2017 filed by the petitioner before Chief Executive Officer, Sonamarg Development Authority requesting him for extension in period of allotment in respect of Island Retreat Park at Hung Sonamarg.
iii) Copy of the communication dated 31-09-2017 addressed by Chief Executive officer, Sonamarg Development Authority to Director Tourism Kashmir (Chairman Outsourcing Committee).
iv) Copy of the communication dated 30-03-2018 addressed by Chief Executive Officer SDA to petitioner for extension of contract for one season only with 10% escalation against the bid amount.
v) Copy of the notice dated 20-07-2018 for referring the dispute to the Arbitrator.
vi) Copy of the receipt of payment dated 03-05-2018 by petitioner to Sonamarg Development authority and copy of the cheque dated 01-07-2018.
5. The respondents have annexed with the objections following documents:
i) Copy of the letter dated 14-08-2018 whereby official respondents had made it clear that the contract has been extended for one season only and the matter need not to be sent to Arbitrator as the there is no dispute amongst the parties.
ii) Copy of the order dated 06-11-2018 whereby an application filed under Section 11 of J & K Arbitration and Conciliation Act was dismissed as withdrawn from the court of the District Judge, Ganderbal.
6. Mr. Haqani, learned counsel for the petitioner while making reference to the recommendations made by the Chief Executive officer (respondent herein) in terms of communication No. CEO/SDA/929-30 dated 31-09-2017, contended that in light of the relevant grounds quoted in the communication, extension of contract for further period of five years have been requested to be deliberated upon in the Out Sourcing Committee. There is non application of mind and without quoting any reason in terms of the communication No. CEO/SDA/681-84 dated 30-03-2018, extension was granted only for one season. Failure on the part of the respondent to take follow up action in terms of the notice referred as Annexure P-5 has constrained the petitioner to file the instant petition for grant of interim assistance. He has also referred to Annexure R-1 which according to him cannot be treated as proper response to the representation/notice issued for making reference to the Arbitrator. Judgment of Hon'ble Apex court in Deoraj vs. State Of Maharashtra & Ors. 2004 Supp (2) SCR 697 has been relied on to sound that interim assistance can be granted even if it may have propensity of granting of main relief. The conduct of the petitioner according to him is free from blemish as such, there is nothing which could be treated as barrier for granting interim assistance at this stage till the arbitral Tribunal returns its findings in the matter. Further it is canvassed that the petition has also been filed under Section 11 of the J & K Arbitration and Conciliation Act for appointment of the Arbitrator in the matter.
7. Mr. Chashooo, learned A.A.G. submits that there is no ground for grant of interim assistance, arbitral proceedings too cannot be initiated as no dispute has arisen which could be referred to the arbitration. It is also his plea that the petitioner has accepted the decision taken for extension of the license for a period of one year and acted upon it and so now he cannot retract and say that the decision on his representation was unjust or uncalled.
8. Considered the rival arguments and perused the material brought on record and submissions made by the learned counsel for the parties. On perusal of the copy of the license deed brought on record, it emanates that the licensor hereby authorized the licensees to hold the said premises for term of 5 years which had to commence from the 08-01-2013 with option of renewal (exercisable by the licensor) for any further period exceeding 5 years on enhanced rent as may be determined by the licensor. Clause 19 of the said deed states that in case of any dispute between the parties hereto the same shall be referred for Arbitration of Administrative Secretary in charge Tourism and Culture Department, Government of J & K whose decision shall be final and binding upon the parties. The proceedings of the arbitration shall be conducted under the provisions of the J & K Arbitration and Conciliation Act, 1997 and rules framed thereunder. The venue of Arbitration shall be at Jammu/Srinagar, depending upon the locale of the assets.
9. The text of the deed further makes it clear that the contract so entered into between the parties could be put to an end earlier by resorting to mechanism indicated therein. The petitioner herein admittedly has used the premises in light of the contract entered into between the parties up to November 2017 and thereafter same has been extended for one season with 10% escalation against the bid amount. The order of extension is dated 30-03-2018 and it is stated that the extension is made for one season with 10% escalation and the same has been signed by the Chief Executive Officer (respondent) on 31-09-2017. The concerned authority at the time of the accord of sanction for extension has made reference to the notice issued for deposition of the amount of Rs. 3.09 lacs which was outstanding against the petitioner. The huge investment made earlier has been also given a thought at the time when the extension was granted. Notice for making reference of the dispute which according to the petitioner has been made on 20-07-2018 has been replied with assertion in communication dated 14-08-2018, the doors are open for healthy discussion.
10. Section 9 of the J & K Arbitration and Conciliation Act for short "Act" empowers District court and High Court to make appropriate orders for preservation of the property or have other interim measures till the matter is settled by the arbitral Tribunal before which the proceedings are contemplated to be initiated. It is no more res integra that for grant of interim assistance, same principles which govern the grant of interim assistance in supplemental proceedings before a civil court in terms of Order 39 of CPC or under the provision of Specific Relief Act applies. It is to be borne in mind that the court which has to be approached for grant of the assistance cannot decide the merits of the case or rights of the parties under Section 9 of the Act as it has to consider only the question of existence of the arbitration clause necessitating of taking immediate measures for issuance of the direction for protecting the lis.
11. The contract between the petitioner and the respondent herein on 08-08-2013 has come to an end by efflux of time. The measures to be taken as interim assistance in the facts and circumstances referred supra are sought by the petitioner by the maintenance of the status quo i.e., to allow the petitioner to use the property till the arbitral Tribunal gives its findings over the dispute stated to be crept in between the parties and required to be settled. Notice of the fact needs to be taken that the contract entered into between the parties was determinable in nature and having regard to the provisions of the Specific Relief Act its specific performance could not be insisted upon as it is to be concluded under relevant provision of the Specific Relief Act that in such case of contract, the compensation is adequate remedy. The natural corollary of the same being that the injunction cannot be granted either in preventive or mandatory form and the compensation is a proper remedy under the relevant law. In such circumstances the petitioner's stand that having regard to the huge investment made and other factors like floods, cloud burst and collapse of the bridge it would be in fairness to allow her to continue the present arrangement melts into insignificance.
12. In the above backdrop and for the reasons that the relief so granted, has propensity of granting of the main relief which may or may not be granted ultimately by the arbitral Tribunal, grant of interim assistance is not permissible. It may also be relevant to state herein that the contention raised that similarly situated person were given different treatment too would not impel the Court to grant assistance sought, in proceedings when the petitioner has invoked the jurisdiction for enforcement of a private law remedy. Furthermore as the grant of assistance would result in reviving a contract which has already come to an end same cannot be said to be within the scope of Section 9 of the Act.
13. For what has been stated above, I am of the opinion that no case has been made out for grant of interim assistance. Therefore, petition lacks merit and is accordingly dismissed.
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