Semantic Analysis by spaCy
Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors.
Decided On : Aug-24-2005
Court : Punjab and Haryana
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Kumar', (int) 1 => 'J.1', (int) 2 => 'Noida', (int) 3 => 'S.C.C.', (int) 4 => 'Ashok Aggarwal', (int) 5 => 'Vikram Aggarwai', (int) 6 => 'Lal Sahnia', (int) 7 => 'Anr', (int) 8 => 'Navkiran Singh', (int) 9 => 'Isaac Peter' ), 'CARDINAL' => array( (int) 0 => 'two', (int) 1 => '3', (int) 2 => 'two', (int) 3 => '4', (int) 4 => '21.6.2005', (int) 5 => '1996(2', (int) 6 => '22', (int) 7 => '4', (int) 8 => '16', (int) 9 => '4', (int) 10 => '1994]2SCR67', (int) 11 => '3', (int) 12 => '33', (int) 13 => '3' ), 'ORDINAL' => array( (int) 0 => 'First', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'Firstly', (int) 4 => 'Secondly', (int) 5 => 'firstly', (int) 6 => 'Secondly' ), 'DATE' => array( (int) 0 => '2005', (int) 1 => '2005', (int) 2 => 'summer', (int) 3 => '11.2.2005', (int) 4 => '11.2.2005', (int) 5 => 'March', (int) 6 => '2005', (int) 7 => '17', (int) 8 => '18', (int) 9 => '11.2.2005', (int) 10 => '1996', (int) 11 => '1996', (int) 12 => '2005' ), 'ORG' => array( (int) 0 => 'the Central Academy Educational Progressive Society of India', (int) 1 => 'National Fertilisers Limited', (int) 2 => 'the National Fertilisers Limited', (int) 3 => 'Panipat', (int) 4 => 'the Central Academy Educational Progressive Society of India', (int) 5 => 'the National Fertilisers Limited', (int) 6 => 'National Fertilisers Limited', (int) 7 => 'the Kendriya Vidalaya Sangthan', (int) 8 => 'NFL', (int) 9 => 'the Central Academy Educational Progressive Society of India', (int) 10 => 'Court', (int) 11 => 'the Supreme Court', (int) 12 => 'State', (int) 13 => 'U.P.', (int) 14 => 'Ors', (int) 15 => 'Bridge & Roof Co.', (int) 16 => 'the Supreme Court', (int) 17 => 'State of Bihar and Ors', (int) 18 => 'Jain Plastics and Chemicals Ltd.', (int) 19 => 'Court', (int) 20 => 'Supreme Court', (int) 21 => 'Indian Oil Corporation Ltd.', (int) 22 => 'Ors', (int) 23 => 'National Fertilisers Limited', (int) 24 => 'the Supreme Court', (int) 25 => 'Food Corporation of India', (int) 26 => 'Kamdhenu Cattle Feed Industries', (int) 27 => 'Court', (int) 28 => 'the High Court', (int) 29 => 'the Supreme Court', (int) 30 => 'Bridge & Roof Co.', (int) 31 => 'India) Ltd.', (int) 32 => 'Lordships', (int) 33 => 'the Sale of Goods Act', (int) 34 => 'Civil Court', (int) 35 => 'Government', (int) 36 => 'the High Court', (int) 37 => 'the High Court', (int) 38 => 'prayer.17', (int) 39 => 'Contract', (int) 40 => 'the Civil Court', (int) 41 => 'the Civil Court', (int) 42 => 'Court', (int) 43 => 'Clause 33', (int) 44 => 'India Arbitration', (int) 45 => 'the Arbitration and Conciliation Act', (int) 46 => 'Court' ), 'GPE' => array( (int) 0 => 'India', (int) 1 => 'Kendriya', (int) 2 => 'Panipat' ), 'NORP' => array( (int) 0 => 'Harbans', (int) 1 => 'Mandamus' ) ), 'desc' => array( 'Judgement' => array( 'id' => '629444', 'acts' => 'Contract Act; Sale of Goods Act; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>; Arbitration and Conciliation Rules; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226', 'appealno' => 'Civil Writ Petition No. 7658 of 2005', 'appellant' => 'Central Academy Educational Progressive Society of India', 'authreffered' => '', 'casename' => 'Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors.', 'casenote' => 'Civil - Maintainability of Petition - Arbitration Clause - Existence of - Article 226 of Constitution of India - Writ petition has been filed by Educational Society for issuance of directions to respondent Nos. l to 3, to hand over school premises owned by them - Said prayer in writ petition stems from a lease agreement between parties - Second writ petition has been filed by some students in which Educational Society has been impleaded as respondent No. 4 alongwith respondent no. 1 to 3 - In the latter writ petition, directions have been sought to respondents to ensure that petitioners do not miss their studies on re-opening of school after summer vacations - Respondent no. 1 to 3 contended that lease deed contains a specific Clause envisaging that in event of any dispute arising between parties then same was to be referred to sole arbitration - Held, in first writ petition, it is evident that lease-deed is not statutory in nature nor it has been pleaded by petitioner/educational society that some statutory contract has come into being by execution of lease deed - It necessarily leads to inference that contract between petitioner/education society and respondent Nos. l to 3 is in realm of private law - It is evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between parties - Thus, no interference of Court would be warranted because once in a lease agreement, there is Clause for arbitration mutually agreed between parties then High Court is not to exercise jurisdiction under Article 226 of Constitution - Hence, writ petition filed by petitioner/educational society is liable to be dismissed - Whereas in second writ petition, students have no legal or vested right to study in particular school, which is to be maintained by particular management - Moreover, with dismissal of connected writ petition respondent Nos. l to 3 would feel free to proceed with restart of their school - Both writ petition are devoid of any merit and so, dismissed accordingly - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution. 9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed.', 'caseanalysis' => null, 'casesref' => 'Assistant Excise Commissioner v. Isaac Peter;', 'citingcases' => '', 'counselplain' => ' Vikram Aggarwal, Adv.; Navkirn Singh, Adv.', 'counseldef' => ' Ashok Aggarwal, Sr. Adv. assisted by; Mukul Aggarwal, Adv. for Respt Nos. 1 and 3 and; ', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This order shall dispose of two writ petitions. First writ petition bearing C.W.P. No. 7658 of 2005 has been filed by the Central Academy Educational Progressive Society of India for issuance of directions to respondent Nos.l to 3, namely, National Fertilisers Limited, Noida and its two officers to hand over the school premises owned by the National Fertilisers Limited at Panipat. The aforementioned prayer stems from a lease agreement dated 11.2.2005 (Annexure P-6). The second petition bearing CWP No. 9500 of 2005 has been filed by some students in which the Central Academy Educational Progressive Society of India has been impleaded as respondent No. 4 alongwith the National Fertilisers Limited and its officers. In the latter writ petition, directions have been sought to the respondents to ensure that the petitioners do not miss their studies on the re-opening of the school on 21.6.2005 after the summer vacations. It has further been prayed that the respondent-National Fertilisers Limited through its officers should take appropriate steps to ensure that the Kendriya Vidalaya Sangthan starts operation of the school owned by NFL at Panipat.</p><p style="text-align: justify;">2. A detailed reference to the facts stated in both the petitions is not required to be made in view of a preliminary objection raised by the learned counsel for the respondents. It has been pointed out that necessarily, the relied claimed by the Central Academy Educational Progressive Society of India is based on a lease deed dated 11.2.2005 (Annexure P-6). According to the respondents, the lease deed dated 11.2.2005 (Annexure P-6) contains a specific Clause envisaging that in the event of any dispute (s) of difference(s) arising between the parties then the same was to be referred to the sole arbitration of the Chief Executive of the lessor Company. On the basis of the aforementioned Clause, it has been claimed that ordinarily, this Court should not entertain the dispute in exercise of jurisdiction under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In support of the submission, reliance has been placed on a judgment of the Supreme Court in the case of State of U.P. and Ors. v. Bridge & Roof Co. (India) Ltd. 1996(2) S.C.C. 22. Mr. Ashok Aggarwal, learned Senior Advocate has argued that the writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> would not be maintainable in view of the preliminary objection raised in the written statement filed by respondent No. 4. Learned counsel has further submitted that Article 226 of the Constitution cannot be invoked for enforcing the contractual obligations arising out of lease deed. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd. : AIR2002SC206 .</p><p style="text-align: justify;">3. Mr. Vikram Aggarwai, learned counsel appearing for the petitioner has made an attempt to persuade me to exercise jurisdiction under Article 226 of the Constitution by submitting that in cases where there is a wanton disregard of the principles of natural justice or the action is wholly without jurisdiction, then this Court is not refrained from interfering to undo the injustice. In support of his submission, learned counsel has placed reliance on a judgment of the of trie Supreme Court in the case of Harbans Lal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. : AIR2003SC2120 . He has then submitted that the principles of legitimate expectations requiring the respondent-National Fertilisers Limited to act reasonably and grant of opportunity of hearing to the petitioner would also be applicable. In support of the aforementioned argument, he has placed reliance on a judgment of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries : AIR1993SC1601 .</p><p style="text-align: justify;">4. In the second petition, Mr. Navkiran Singh, learned counsel has argued that a direction deserves to be given to the respondents to ensure that the school is run by the agency, which was managing the affair till March, 2005, namely Kendriya Vidyalya Sangthan. He has maintained that the education career of the students is at stake and they are going to suffer an irreparable loss.</p><p style="text-align: justify;">5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. In this regard reliance placed on a judgment of the Supreme Court in the case of Bridge & Roof Co. (India) Ltd. (supra) is meritorious. The observations of their Lordships in paras No. 16, 17 and 18 would be relevant and the same read as under:-</p><p style="text-align: justify;">16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters, which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition viz., to restrain the Government from deducting particular amount from the writ petitioner's bill(s) was not a prayer, which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.</p><p style="text-align: justify;">17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of Sub-clause (4) of Clause 70 of the Contract is again not a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court as the case may be according to law. Similarly, if the government says that an over payment has been made to the respondent, its remedy also is the same.</p><p style="text-align: justify;">18. Accordingly, it must be held that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law. [See the decision of this Court in Assistant Excise Commissioner v. Isaac Peter : [1994]2SCR67 , where the law on the subject has been discussed fully.] The writ petition ought to have been dismissed on this ground alone.</p><p style="text-align: justify;">6. If the facts of the present case are examined in the light of the principles laid down in the aforementioned judgment, it becomes evident that the lease-deed dated 11.2.2005 (Annexure P-6) is not statutory in nature nor it has been pleaded or argued by the learned counsel for the petitioner that some statutory contract has come into being by execution of the lease deed. It necessarily leads to the inference that contract between the petitioner and respondent Nos.l to 3 is in the realm of private law. It is further evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between the parties. Clause 33 of the lease agreement reads as under:-</p><p style="text-align: justify;">33. That in the event of any dispute (s) or difference (s) arising between the parties hereto as to the construction, interpretation or operation of this agreement or the respective rights and liabilities of the parties, such dispute (s) or difference (s) shall be referred to the sole arbitration of the Chief Executive of the lessor Company or his nominee, whose decision in the matter shall be final and binding upon both the parties. There shall have no objection, if the Arbitrator so appointed is an employee of the lessor and that he had to deal with the matter to which the agreement relates and that in the course of his duties, he had expressed views on all or any of the matters in dispute or defence. The Arbitrator shall give a reasoned award, if the subject matter of the arbitration shall be decided by the Arbitrator.</p><p style="text-align: justify;">Subject, as aforesaid, the provision of India <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and the rules made thereunder, or statutory modification or re-enhancement thereof from time to time shall apply to the arbitration proceedings under the clause.</p><p style="text-align: justify;">It is thus evident that any dispute with regard to the agreement is required to be referred to the sole arbitration of Chief Executive of the respondent-Company or his nominee and the provisions of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> (for brevity 'the Act') have been made expressly applicable. Therefore, the dispute raised in the instant petition is liable to be adjudicated by virtue of arbitration clause in accordance with the provisions of the Act. Accordingly, in the presence of arbitration clause, I would not feel inclined to exercise jurisdiction under Article 226. The Act itself is a complete code and provides for comprehensive mechanism of settling dispute. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution.</p><p style="text-align: justify;">7. The argument of the learned counsel with regard to the violation of principles of natural justice or legitimate expectations, which is another facet of the principles of natural justice would not require any detailed consideration because firstly, the lease deed between the parties is not the result of any statutory obligation nor it has a statutory character. Secondly, the grievance with regard to the violation of the principles of natural justice or legitimate expectations can always be raised before the arbitrator in accordance with the provisions of Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6). Therefore, I do not feel persuaded to accept the argument raised by the learned counsel for the petitioner.</p><p style="text-align: justify;">8. The argument with regard to the students raised in the connected petition would also not require any detailed consideration because there is no legal or vested right with the students to study in a particular school, which is to be maintained by a particular management. Moreover, with the dismissal of the connected writ petition bearing C.W.P. No. 7658 of 2005, respondent Nos.l to 3 would feel free to proceed with the restart of their school at Panipat. In any case, no mandamus could be issued in the absence of any statutory legal right creating a corresponding legal duty on the respondents. Therefore, there is no substance in the argument raised on behalf of the students.</p><p style="text-align: justify;">9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed. As the alternative remedy of arbitration is provided by Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6), there is no infringement of the right of the students, who are petitioners in the connected writ petition. No costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR348', 'ratiodecidendi' => '', 'respondent' => 'National Fertilisers Ltd. and ors.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '629444' ) ) $title_for_layout = 'Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Article 226 of the Constitution of India', (int) 1 => 'Article 226 of the Constitution of India', (int) 2 => 'Article 226 of the Constitution', (int) 3 => 'Article 226 of the Constitution', (int) 4 => 'Article 226 of the Constitution', (int) 5 => 'Article 226 of the Constitution', (int) 6 => 'the Contract Act', (int) 7 => 'Article 226', (int) 8 => 'Article 226', (int) 9 => 'Article 226 of the Constitution.7' ), 'PERSON' => array( (int) 0 => 'M.M. 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National Fertilisers Ltd. and ors.', 'casenote' => 'Civil - Maintainability of Petition - Arbitration Clause - Existence of - Article 226 of Constitution of India - Writ petition has been filed by Educational Society for issuance of directions to respondent Nos. l to 3, to hand over school premises owned by them - Said prayer in writ petition stems from a lease agreement between parties - Second writ petition has been filed by some students in which Educational Society has been impleaded as respondent No. 4 alongwith respondent no. 1 to 3 - In the latter writ petition, directions have been sought to respondents to ensure that petitioners do not miss their studies on re-opening of school after summer vacations - Respondent no. 1 to 3 contended that lease deed contains a specific Clause envisaging that in event of any dispute arising between parties then same was to be referred to sole arbitration - Held, in first writ petition, it is evident that lease-deed is not statutory in nature nor it has been pleaded by petitioner/educational society that some statutory contract has come into being by execution of lease deed - It necessarily leads to inference that contract between petitioner/education society and respondent Nos. l to 3 is in realm of private law - It is evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between parties - Thus, no interference of Court would be warranted because once in a lease agreement, there is Clause for arbitration mutually agreed between parties then High Court is not to exercise jurisdiction under Article 226 of Constitution - Hence, writ petition filed by petitioner/educational society is liable to be dismissed - Whereas in second writ petition, students have no legal or vested right to study in particular school, which is to be maintained by particular management - Moreover, with dismissal of connected writ petition respondent Nos. l to 3 would feel free to proceed with restart of their school - Both writ petition are devoid of any merit and so, dismissed accordingly - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution. 9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed.', 'caseanalysis' => null, 'casesref' => 'Assistant Excise Commissioner v. Isaac Peter;', 'citingcases' => '', 'counselplain' => ' Vikram Aggarwal, Adv.; Navkirn Singh, Adv.', 'counseldef' => ' Ashok Aggarwal, Sr. Adv. assisted by; Mukul Aggarwal, Adv. for Respt Nos. 1 and 3 and; ', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This order shall dispose of two writ petitions. First writ petition bearing C.W.P. No. 7658 of 2005 has been filed by the Central Academy Educational Progressive Society of India for issuance of directions to respondent Nos.l to 3, namely, National Fertilisers Limited, Noida and its two officers to hand over the school premises owned by the National Fertilisers Limited at Panipat. The aforementioned prayer stems from a lease agreement dated 11.2.2005 (Annexure P-6). The second petition bearing CWP No. 9500 of 2005 has been filed by some students in which the Central Academy Educational Progressive Society of India has been impleaded as respondent No. 4 alongwith the National Fertilisers Limited and its officers. In the latter writ petition, directions have been sought to the respondents to ensure that the petitioners do not miss their studies on the re-opening of the school on 21.6.2005 after the summer vacations. It has further been prayed that the respondent-National Fertilisers Limited through its officers should take appropriate steps to ensure that the Kendriya Vidalaya Sangthan starts operation of the school owned by NFL at Panipat.</p><p style="text-align: justify;">2. A detailed reference to the facts stated in both the petitions is not required to be made in view of a preliminary objection raised by the learned counsel for the respondents. It has been pointed out that necessarily, the relied claimed by the Central Academy Educational Progressive Society of India is based on a lease deed dated 11.2.2005 (Annexure P-6). According to the respondents, the lease deed dated 11.2.2005 (Annexure P-6) contains a specific Clause envisaging that in the event of any dispute (s) of difference(s) arising between the parties then the same was to be referred to the sole arbitration of the Chief Executive of the lessor Company. On the basis of the aforementioned Clause, it has been claimed that ordinarily, this Court should not entertain the dispute in exercise of jurisdiction under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In support of the submission, reliance has been placed on a judgment of the Supreme Court in the case of State of U.P. and Ors. v. Bridge & Roof Co. (India) Ltd. 1996(2) S.C.C. 22. Mr. Ashok Aggarwal, learned Senior Advocate has argued that the writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> would not be maintainable in view of the preliminary objection raised in the written statement filed by respondent No. 4. Learned counsel has further submitted that Article 226 of the Constitution cannot be invoked for enforcing the contractual obligations arising out of lease deed. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd. : AIR2002SC206 .</p><p style="text-align: justify;">3. Mr. Vikram Aggarwai, learned counsel appearing for the petitioner has made an attempt to persuade me to exercise jurisdiction under Article 226 of the Constitution by submitting that in cases where there is a wanton disregard of the principles of natural justice or the action is wholly without jurisdiction, then this Court is not refrained from interfering to undo the injustice. In support of his submission, learned counsel has placed reliance on a judgment of the of trie Supreme Court in the case of Harbans Lal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. : AIR2003SC2120 . He has then submitted that the principles of legitimate expectations requiring the respondent-National Fertilisers Limited to act reasonably and grant of opportunity of hearing to the petitioner would also be applicable. In support of the aforementioned argument, he has placed reliance on a judgment of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries : AIR1993SC1601 .</p><p style="text-align: justify;">4. In the second petition, Mr. Navkiran Singh, learned counsel has argued that a direction deserves to be given to the respondents to ensure that the school is run by the agency, which was managing the affair till March, 2005, namely Kendriya Vidyalya Sangthan. He has maintained that the education career of the students is at stake and they are going to suffer an irreparable loss.</p><p style="text-align: justify;">5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. In this regard reliance placed on a judgment of the Supreme Court in the case of Bridge & Roof Co. (India) Ltd. (supra) is meritorious. The observations of their Lordships in paras No. 16, 17 and 18 would be relevant and the same read as under:-</p><p style="text-align: justify;">16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters, which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition viz., to restrain the Government from deducting particular amount from the writ petitioner's bill(s) was not a prayer, which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.</p><p style="text-align: justify;">17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of Sub-clause (4) of Clause 70 of the Contract is again not a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court as the case may be according to law. Similarly, if the government says that an over payment has been made to the respondent, its remedy also is the same.</p><p style="text-align: justify;">18. Accordingly, it must be held that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law. [See the decision of this Court in Assistant Excise Commissioner v. Isaac Peter : [1994]2SCR67 , where the law on the subject has been discussed fully.] The writ petition ought to have been dismissed on this ground alone.</p><p style="text-align: justify;">6. If the facts of the present case are examined in the light of the principles laid down in the aforementioned judgment, it becomes evident that the lease-deed dated 11.2.2005 (Annexure P-6) is not statutory in nature nor it has been pleaded or argued by the learned counsel for the petitioner that some statutory contract has come into being by execution of the lease deed. It necessarily leads to the inference that contract between the petitioner and respondent Nos.l to 3 is in the realm of private law. It is further evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between the parties. Clause 33 of the lease agreement reads as under:-</p><p style="text-align: justify;">33. That in the event of any dispute (s) or difference (s) arising between the parties hereto as to the construction, interpretation or operation of this agreement or the respective rights and liabilities of the parties, such dispute (s) or difference (s) shall be referred to the sole arbitration of the Chief Executive of the lessor Company or his nominee, whose decision in the matter shall be final and binding upon both the parties. There shall have no objection, if the Arbitrator so appointed is an employee of the lessor and that he had to deal with the matter to which the agreement relates and that in the course of his duties, he had expressed views on all or any of the matters in dispute or defence. The Arbitrator shall give a reasoned award, if the subject matter of the arbitration shall be decided by the Arbitrator.</p><p style="text-align: justify;">Subject, as aforesaid, the provision of India <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and the rules made thereunder, or statutory modification or re-enhancement thereof from time to time shall apply to the arbitration proceedings under the clause.</p><p style="text-align: justify;">It is thus evident that any dispute with regard to the agreement is required to be referred to the sole arbitration of Chief Executive of the respondent-Company or his nominee and the provisions of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> (for brevity 'the Act') have been made expressly applicable. Therefore, the dispute raised in the instant petition is liable to be adjudicated by virtue of arbitration clause in accordance with the provisions of the Act. Accordingly, in the presence of arbitration clause, I would not feel inclined to exercise jurisdiction under Article 226. The Act itself is a complete code and provides for comprehensive mechanism of settling dispute. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution.</p><p style="text-align: justify;">7. The argument of the learned counsel with regard to the violation of principles of natural justice or legitimate expectations, which is another facet of the principles of natural justice would not require any detailed consideration because firstly, the lease deed between the parties is not the result of any statutory obligation nor it has a statutory character. Secondly, the grievance with regard to the violation of the principles of natural justice or legitimate expectations can always be raised before the arbitrator in accordance with the provisions of Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6). Therefore, I do not feel persuaded to accept the argument raised by the learned counsel for the petitioner.</p><p style="text-align: justify;">8. The argument with regard to the students raised in the connected petition would also not require any detailed consideration because there is no legal or vested right with the students to study in a particular school, which is to be maintained by a particular management. Moreover, with the dismissal of the connected writ petition bearing C.W.P. No. 7658 of 2005, respondent Nos.l to 3 would feel free to proceed with the restart of their school at Panipat. In any case, no mandamus could be issued in the absence of any statutory legal right creating a corresponding legal duty on the respondents. Therefore, there is no substance in the argument raised on behalf of the students.</p><p style="text-align: justify;">9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed. As the alternative remedy of arbitration is provided by Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6), there is no infringement of the right of the students, who are petitioners in the connected writ petition. No costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR348', 'ratiodecidendi' => '', 'respondent' => 'National Fertilisers Ltd. and ors.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '629444' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Kumar', (int) 1 => 'J.1', (int) 2 => 'Noida', (int) 3 => 'S.C.C.', (int) 4 => 'Ashok Aggarwal', (int) 5 => 'Vikram Aggarwai', (int) 6 => 'Lal Sahnia', (int) 7 => 'Anr', (int) 8 => 'Navkiran Singh', (int) 9 => 'Isaac Peter' ), 'CARDINAL' => array( (int) 0 => 'two', (int) 1 => '3', (int) 2 => 'two', (int) 3 => '4', (int) 4 => '21.6.2005', (int) 5 => '1996(2', (int) 6 => '22', (int) 7 => '4', (int) 8 => '16', (int) 9 => '4', (int) 10 => '1994]2SCR67', (int) 11 => '3', (int) 12 => '33', (int) 13 => '3' ), 'ORDINAL' => array( (int) 0 => 'First', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'Firstly', (int) 4 => 'Secondly', (int) 5 => 'firstly', (int) 6 => 'Secondly' ), 'DATE' => array( (int) 0 => '2005', (int) 1 => '2005', (int) 2 => 'summer', (int) 3 => '11.2.2005', (int) 4 => '11.2.2005', (int) 5 => 'March', (int) 6 => '2005', (int) 7 => '17', (int) 8 => '18', (int) 9 => '11.2.2005', (int) 10 => '1996', (int) 11 => '1996', (int) 12 => '2005' ), 'ORG' => array( (int) 0 => 'the Central Academy Educational Progressive Society of India', (int) 1 => 'National Fertilisers Limited', (int) 2 => 'the National Fertilisers Limited', (int) 3 => 'Panipat', (int) 4 => 'the Central Academy Educational Progressive Society of India', (int) 5 => 'the National Fertilisers Limited', (int) 6 => 'National Fertilisers Limited', (int) 7 => 'the Kendriya Vidalaya Sangthan', (int) 8 => 'NFL', (int) 9 => 'the Central Academy Educational Progressive Society of India', (int) 10 => 'Court', (int) 11 => 'the Supreme Court', (int) 12 => 'State', (int) 13 => 'U.P.', (int) 14 => 'Ors', (int) 15 => 'Bridge & Roof Co.', (int) 16 => 'the Supreme Court', (int) 17 => 'State of Bihar and Ors', (int) 18 => 'Jain Plastics and Chemicals Ltd.', (int) 19 => 'Court', (int) 20 => 'Supreme Court', (int) 21 => 'Indian Oil Corporation Ltd.', (int) 22 => 'Ors', (int) 23 => 'National Fertilisers Limited', (int) 24 => 'the Supreme Court', (int) 25 => 'Food Corporation of India', (int) 26 => 'Kamdhenu Cattle Feed Industries', (int) 27 => 'Court', (int) 28 => 'the High Court', (int) 29 => 'the Supreme Court', (int) 30 => 'Bridge & Roof Co.', (int) 31 => 'India) Ltd.', (int) 32 => 'Lordships', (int) 33 => 'the Sale of Goods Act', (int) 34 => 'Civil Court', (int) 35 => 'Government', (int) 36 => 'the High Court', (int) 37 => 'the High Court', (int) 38 => 'prayer.17', (int) 39 => 'Contract', (int) 40 => 'the Civil Court', (int) 41 => 'the Civil Court', (int) 42 => 'Court', (int) 43 => 'Clause 33', (int) 44 => 'India Arbitration', (int) 45 => 'the Arbitration and Conciliation Act', (int) 46 => 'Court' ), 'GPE' => array( (int) 0 => 'India', (int) 1 => 'Kendriya', (int) 2 => 'Panipat' ), 'NORP' => array( (int) 0 => 'Harbans', (int) 1 => 'Mandamus' ) ), 'desc' => array( 'Judgement' => array( 'id' => '629444', 'acts' => 'Contract Act; Sale of Goods Act; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>; Arbitration and Conciliation Rules; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226', 'appealno' => 'Civil Writ Petition No. 7658 of 2005', 'appellant' => 'Central Academy Educational Progressive Society of India', 'authreffered' => '', 'casename' => 'Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors.', 'casenote' => 'Civil - Maintainability of Petition - Arbitration Clause - Existence of - Article 226 of Constitution of India - Writ petition has been filed by Educational Society for issuance of directions to respondent Nos. l to 3, to hand over school premises owned by them - Said prayer in writ petition stems from a lease agreement between parties - Second writ petition has been filed by some students in which Educational Society has been impleaded as respondent No. 4 alongwith respondent no. 1 to 3 - In the latter writ petition, directions have been sought to respondents to ensure that petitioners do not miss their studies on re-opening of school after summer vacations - Respondent no. 1 to 3 contended that lease deed contains a specific Clause envisaging that in event of any dispute arising between parties then same was to be referred to sole arbitration - Held, in first writ petition, it is evident that lease-deed is not statutory in nature nor it has been pleaded by petitioner/educational society that some statutory contract has come into being by execution of lease deed - It necessarily leads to inference that contract between petitioner/education society and respondent Nos. l to 3 is in realm of private law - It is evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between parties - Thus, no interference of Court would be warranted because once in a lease agreement, there is Clause for arbitration mutually agreed between parties then High Court is not to exercise jurisdiction under Article 226 of Constitution - Hence, writ petition filed by petitioner/educational society is liable to be dismissed - Whereas in second writ petition, students have no legal or vested right to study in particular school, which is to be maintained by particular management - Moreover, with dismissal of connected writ petition respondent Nos. l to 3 would feel free to proceed with restart of their school - Both writ petition are devoid of any merit and so, dismissed accordingly - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution. 9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed.', 'caseanalysis' => null, 'casesref' => 'Assistant Excise Commissioner v. Isaac Peter;', 'citingcases' => '', 'counselplain' => ' Vikram Aggarwal, Adv.; Navkirn Singh, Adv.', 'counseldef' => ' Ashok Aggarwal, Sr. Adv. assisted by; Mukul Aggarwal, Adv. for Respt Nos. 1 and 3 and; ', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This order shall dispose of two writ petitions. First writ petition bearing C.W.P. No. 7658 of 2005 has been filed by the Central Academy Educational Progressive Society of India for issuance of directions to respondent Nos.l to 3, namely, National Fertilisers Limited, Noida and its two officers to hand over the school premises owned by the National Fertilisers Limited at Panipat. The aforementioned prayer stems from a lease agreement dated 11.2.2005 (Annexure P-6). The second petition bearing CWP No. 9500 of 2005 has been filed by some students in which the Central Academy Educational Progressive Society of India has been impleaded as respondent No. 4 alongwith the National Fertilisers Limited and its officers. In the latter writ petition, directions have been sought to the respondents to ensure that the petitioners do not miss their studies on the re-opening of the school on 21.6.2005 after the summer vacations. It has further been prayed that the respondent-National Fertilisers Limited through its officers should take appropriate steps to ensure that the Kendriya Vidalaya Sangthan starts operation of the school owned by NFL at Panipat.</p><p style="text-align: justify;">2. A detailed reference to the facts stated in both the petitions is not required to be made in view of a preliminary objection raised by the learned counsel for the respondents. It has been pointed out that necessarily, the relied claimed by the Central Academy Educational Progressive Society of India is based on a lease deed dated 11.2.2005 (Annexure P-6). According to the respondents, the lease deed dated 11.2.2005 (Annexure P-6) contains a specific Clause envisaging that in the event of any dispute (s) of difference(s) arising between the parties then the same was to be referred to the sole arbitration of the Chief Executive of the lessor Company. On the basis of the aforementioned Clause, it has been claimed that ordinarily, this Court should not entertain the dispute in exercise of jurisdiction under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In support of the submission, reliance has been placed on a judgment of the Supreme Court in the case of State of U.P. and Ors. v. Bridge & Roof Co. (India) Ltd. 1996(2) S.C.C. 22. Mr. Ashok Aggarwal, learned Senior Advocate has argued that the writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> would not be maintainable in view of the preliminary objection raised in the written statement filed by respondent No. 4. Learned counsel has further submitted that Article 226 of the Constitution cannot be invoked for enforcing the contractual obligations arising out of lease deed. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd. : AIR2002SC206 .</p><p style="text-align: justify;">3. Mr. Vikram Aggarwai, learned counsel appearing for the petitioner has made an attempt to persuade me to exercise jurisdiction under Article 226 of the Constitution by submitting that in cases where there is a wanton disregard of the principles of natural justice or the action is wholly without jurisdiction, then this Court is not refrained from interfering to undo the injustice. In support of his submission, learned counsel has placed reliance on a judgment of the of trie Supreme Court in the case of Harbans Lal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. : AIR2003SC2120 . He has then submitted that the principles of legitimate expectations requiring the respondent-National Fertilisers Limited to act reasonably and grant of opportunity of hearing to the petitioner would also be applicable. In support of the aforementioned argument, he has placed reliance on a judgment of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries : AIR1993SC1601 .</p><p style="text-align: justify;">4. In the second petition, Mr. Navkiran Singh, learned counsel has argued that a direction deserves to be given to the respondents to ensure that the school is run by the agency, which was managing the affair till March, 2005, namely Kendriya Vidyalya Sangthan. He has maintained that the education career of the students is at stake and they are going to suffer an irreparable loss.</p><p style="text-align: justify;">5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. In this regard reliance placed on a judgment of the Supreme Court in the case of Bridge & Roof Co. (India) Ltd. (supra) is meritorious. The observations of their Lordships in paras No. 16, 17 and 18 would be relevant and the same read as under:-</p><p style="text-align: justify;">16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters, which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition viz., to restrain the Government from deducting particular amount from the writ petitioner's bill(s) was not a prayer, which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.</p><p style="text-align: justify;">17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of Sub-clause (4) of Clause 70 of the Contract is again not a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court as the case may be according to law. Similarly, if the government says that an over payment has been made to the respondent, its remedy also is the same.</p><p style="text-align: justify;">18. Accordingly, it must be held that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law. [See the decision of this Court in Assistant Excise Commissioner v. Isaac Peter : [1994]2SCR67 , where the law on the subject has been discussed fully.] The writ petition ought to have been dismissed on this ground alone.</p><p style="text-align: justify;">6. If the facts of the present case are examined in the light of the principles laid down in the aforementioned judgment, it becomes evident that the lease-deed dated 11.2.2005 (Annexure P-6) is not statutory in nature nor it has been pleaded or argued by the learned counsel for the petitioner that some statutory contract has come into being by execution of the lease deed. It necessarily leads to the inference that contract between the petitioner and respondent Nos.l to 3 is in the realm of private law. It is further evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between the parties. Clause 33 of the lease agreement reads as under:-</p><p style="text-align: justify;">33. That in the event of any dispute (s) or difference (s) arising between the parties hereto as to the construction, interpretation or operation of this agreement or the respective rights and liabilities of the parties, such dispute (s) or difference (s) shall be referred to the sole arbitration of the Chief Executive of the lessor Company or his nominee, whose decision in the matter shall be final and binding upon both the parties. There shall have no objection, if the Arbitrator so appointed is an employee of the lessor and that he had to deal with the matter to which the agreement relates and that in the course of his duties, he had expressed views on all or any of the matters in dispute or defence. The Arbitrator shall give a reasoned award, if the subject matter of the arbitration shall be decided by the Arbitrator.</p><p style="text-align: justify;">Subject, as aforesaid, the provision of India <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and the rules made thereunder, or statutory modification or re-enhancement thereof from time to time shall apply to the arbitration proceedings under the clause.</p><p style="text-align: justify;">It is thus evident that any dispute with regard to the agreement is required to be referred to the sole arbitration of Chief Executive of the respondent-Company or his nominee and the provisions of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> (for brevity 'the Act') have been made expressly applicable. Therefore, the dispute raised in the instant petition is liable to be adjudicated by virtue of arbitration clause in accordance with the provisions of the Act. Accordingly, in the presence of arbitration clause, I would not feel inclined to exercise jurisdiction under Article 226. The Act itself is a complete code and provides for comprehensive mechanism of settling dispute. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution.</p><p style="text-align: justify;">7. The argument of the learned counsel with regard to the violation of principles of natural justice or legitimate expectations, which is another facet of the principles of natural justice would not require any detailed consideration because firstly, the lease deed between the parties is not the result of any statutory obligation nor it has a statutory character. Secondly, the grievance with regard to the violation of the principles of natural justice or legitimate expectations can always be raised before the arbitrator in accordance with the provisions of Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6). Therefore, I do not feel persuaded to accept the argument raised by the learned counsel for the petitioner.</p><p style="text-align: justify;">8. The argument with regard to the students raised in the connected petition would also not require any detailed consideration because there is no legal or vested right with the students to study in a particular school, which is to be maintained by a particular management. Moreover, with the dismissal of the connected writ petition bearing C.W.P. No. 7658 of 2005, respondent Nos.l to 3 would feel free to proceed with the restart of their school at Panipat. In any case, no mandamus could be issued in the absence of any statutory legal right creating a corresponding legal duty on the respondents. Therefore, there is no substance in the argument raised on behalf of the students.</p><p style="text-align: justify;">9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed. As the alternative remedy of arbitration is provided by Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6), there is no infringement of the right of the students, who are petitioners in the connected writ petition. No costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR348', 'ratiodecidendi' => '', 'respondent' => 'National Fertilisers Ltd. and ors.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '629444' ) ) $title_for_layout = 'Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Article 226 of the Constitution of India', (int) 1 => 'Article 226 of the Constitution of India', (int) 2 => 'Article 226 of the Constitution', (int) 3 => 'Article 226 of the Constitution', (int) 4 => 'Article 226 of the Constitution', (int) 5 => 'Article 226 of the Constitution', (int) 6 => 'the Contract Act', (int) 7 => 'Article 226', (int) 8 => 'Article 226', (int) 9 => 'Article 226 of the Constitution.7' ), 'PERSON' => array( (int) 0 => 'M.M. Kumar', (int) 1 => 'J.1', (int) 2 => 'Noida', (int) 3 => 'S.C.C.', (int) 4 => 'Ashok Aggarwal', (int) 5 => 'Vikram Aggarwai', (int) 6 => 'Lal Sahnia', (int) 7 => 'Anr', (int) 8 => 'Navkiran Singh', (int) 9 => 'Isaac Peter' ), 'CARDINAL' => array( (int) 0 => 'two', (int) 1 => '3', (int) 2 => 'two', (int) 3 => '4', (int) 4 => '21.6.2005', (int) 5 => '1996(2', (int) 6 => '22', (int) 7 => '4', (int) 8 => '16', (int) 9 => '4', (int) 10 => '1994]2SCR67', (int) 11 => '3', (int) 12 => '33', (int) 13 => '3' ), 'ORDINAL' => array( (int) 0 => 'First', (int) 1 => 'second', (int) 2 => 'second', (int) 3 => 'Firstly', (int) 4 => 'Secondly', (int) 5 => 'firstly', (int) 6 => 'Secondly' ), 'DATE' => array( (int) 0 => '2005', (int) 1 => '2005', (int) 2 => 'summer', (int) 3 => '11.2.2005', (int) 4 => '11.2.2005', (int) 5 => 'March', (int) 6 => '2005', (int) 7 => '17', (int) 8 => '18', (int) 9 => '11.2.2005', (int) 10 => '1996', (int) 11 => '1996', (int) 12 => '2005' ), 'ORG' => array( (int) 0 => 'the Central Academy Educational Progressive Society of India', (int) 1 => 'National Fertilisers Limited', (int) 2 => 'the National Fertilisers Limited', (int) 3 => 'Panipat', (int) 4 => 'the Central Academy Educational Progressive Society of India', (int) 5 => 'the National Fertilisers Limited', (int) 6 => 'National Fertilisers Limited', (int) 7 => 'the Kendriya Vidalaya Sangthan', (int) 8 => 'NFL', (int) 9 => 'the Central Academy Educational Progressive Society of India', (int) 10 => 'Court', (int) 11 => 'the Supreme Court', (int) 12 => 'State', (int) 13 => 'U.P.', (int) 14 => 'Ors', (int) 15 => 'Bridge & Roof Co.', (int) 16 => 'the Supreme Court', (int) 17 => 'State of Bihar and Ors', (int) 18 => 'Jain Plastics and Chemicals Ltd.', (int) 19 => 'Court', (int) 20 => 'Supreme Court', (int) 21 => 'Indian Oil Corporation Ltd.', (int) 22 => 'Ors', (int) 23 => 'National Fertilisers Limited', (int) 24 => 'the Supreme Court', (int) 25 => 'Food Corporation of India', (int) 26 => 'Kamdhenu Cattle Feed Industries', (int) 27 => 'Court', (int) 28 => 'the High Court', (int) 29 => 'the Supreme Court', (int) 30 => 'Bridge & Roof Co.', (int) 31 => 'India) Ltd.', (int) 32 => 'Lordships', (int) 33 => 'the Sale of Goods Act', (int) 34 => 'Civil Court', (int) 35 => 'Government', (int) 36 => 'the High Court', (int) 37 => 'the High Court', (int) 38 => 'prayer.17', (int) 39 => 'Contract', (int) 40 => 'the Civil Court', (int) 41 => 'the Civil Court', (int) 42 => 'Court', (int) 43 => 'Clause 33', (int) 44 => 'India Arbitration', (int) 45 => 'the Arbitration and Conciliation Act', (int) 46 => 'Court' ), 'GPE' => array( (int) 0 => 'India', (int) 1 => 'Kendriya', (int) 2 => 'Panipat' ), 'NORP' => array( (int) 0 => 'Harbans', (int) 1 => 'Mandamus' ) ) $desc = array( 'Judgement' => array( 'id' => '629444', 'acts' => 'Contract Act; Sale of Goods Act; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a>; Arbitration and Conciliation Rules; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226', 'appealno' => 'Civil Writ Petition No. 7658 of 2005', 'appellant' => 'Central Academy Educational Progressive Society of India', 'authreffered' => '', 'casename' => 'Central Academy Educational Progressive Society of India Vs. National Fertilisers Ltd. and ors.', 'casenote' => 'Civil - Maintainability of Petition - Arbitration Clause - Existence of - Article 226 of Constitution of India - Writ petition has been filed by Educational Society for issuance of directions to respondent Nos. l to 3, to hand over school premises owned by them - Said prayer in writ petition stems from a lease agreement between parties - Second writ petition has been filed by some students in which Educational Society has been impleaded as respondent No. 4 alongwith respondent no. 1 to 3 - In the latter writ petition, directions have been sought to respondents to ensure that petitioners do not miss their studies on re-opening of school after summer vacations - Respondent no. 1 to 3 contended that lease deed contains a specific Clause envisaging that in event of any dispute arising between parties then same was to be referred to sole arbitration - Held, in first writ petition, it is evident that lease-deed is not statutory in nature nor it has been pleaded by petitioner/educational society that some statutory contract has come into being by execution of lease deed - It necessarily leads to inference that contract between petitioner/education society and respondent Nos. l to 3 is in realm of private law - It is evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between parties - Thus, no interference of Court would be warranted because once in a lease agreement, there is Clause for arbitration mutually agreed between parties then High Court is not to exercise jurisdiction under Article 226 of Constitution - Hence, writ petition filed by petitioner/educational society is liable to be dismissed - Whereas in second writ petition, students have no legal or vested right to study in particular school, which is to be maintained by particular management - Moreover, with dismissal of connected writ petition respondent Nos. l to 3 would feel free to proceed with restart of their school - Both writ petition are devoid of any merit and so, dismissed accordingly - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana - Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab. Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920. HINDU SUCCESSION ACT,1956[C.A.No.30/1956] -- Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act, she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. In Pritam Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. - 5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution. 9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed.', 'caseanalysis' => null, 'casesref' => 'Assistant Excise Commissioner v. Isaac Peter;', 'citingcases' => '', 'counselplain' => ' Vikram Aggarwal, Adv.; Navkirn Singh, Adv.', 'counseldef' => ' Ashok Aggarwal, Sr. Adv. assisted by; Mukul Aggarwal, Adv. for Respt Nos. 1 and 3 and; ', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2005-08-24', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' M.M. Kumar, J.', 'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This order shall dispose of two writ petitions. First writ petition bearing C.W.P. No. 7658 of 2005 has been filed by the Central Academy Educational Progressive Society of India for issuance of directions to respondent Nos.l to 3, namely, National Fertilisers Limited, Noida and its two officers to hand over the school premises owned by the National Fertilisers Limited at Panipat. The aforementioned prayer stems from a lease agreement dated 11.2.2005 (Annexure P-6). The second petition bearing CWP No. 9500 of 2005 has been filed by some students in which the Central Academy Educational Progressive Society of India has been impleaded as respondent No. 4 alongwith the National Fertilisers Limited and its officers. In the latter writ petition, directions have been sought to the respondents to ensure that the petitioners do not miss their studies on the re-opening of the school on 21.6.2005 after the summer vacations. It has further been prayed that the respondent-National Fertilisers Limited through its officers should take appropriate steps to ensure that the Kendriya Vidalaya Sangthan starts operation of the school owned by NFL at Panipat.</p><p style="text-align: justify;">2. A detailed reference to the facts stated in both the petitions is not required to be made in view of a preliminary objection raised by the learned counsel for the respondents. It has been pointed out that necessarily, the relied claimed by the Central Academy Educational Progressive Society of India is based on a lease deed dated 11.2.2005 (Annexure P-6). According to the respondents, the lease deed dated 11.2.2005 (Annexure P-6) contains a specific Clause envisaging that in the event of any dispute (s) of difference(s) arising between the parties then the same was to be referred to the sole arbitration of the Chief Executive of the lessor Company. On the basis of the aforementioned Clause, it has been claimed that ordinarily, this Court should not entertain the dispute in exercise of jurisdiction under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. In support of the submission, reliance has been placed on a judgment of the Supreme Court in the case of State of U.P. and Ors. v. Bridge & Roof Co. (India) Ltd. 1996(2) S.C.C. 22. Mr. Ashok Aggarwal, learned Senior Advocate has argued that the writ petition under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> would not be maintainable in view of the preliminary objection raised in the written statement filed by respondent No. 4. Learned counsel has further submitted that Article 226 of the Constitution cannot be invoked for enforcing the contractual obligations arising out of lease deed. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd. : AIR2002SC206 .</p><p style="text-align: justify;">3. Mr. Vikram Aggarwai, learned counsel appearing for the petitioner has made an attempt to persuade me to exercise jurisdiction under Article 226 of the Constitution by submitting that in cases where there is a wanton disregard of the principles of natural justice or the action is wholly without jurisdiction, then this Court is not refrained from interfering to undo the injustice. In support of his submission, learned counsel has placed reliance on a judgment of the of trie Supreme Court in the case of Harbans Lal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. : AIR2003SC2120 . He has then submitted that the principles of legitimate expectations requiring the respondent-National Fertilisers Limited to act reasonably and grant of opportunity of hearing to the petitioner would also be applicable. In support of the aforementioned argument, he has placed reliance on a judgment of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries : AIR1993SC1601 .</p><p style="text-align: justify;">4. In the second petition, Mr. Navkiran Singh, learned counsel has argued that a direction deserves to be given to the respondents to ensure that the school is run by the agency, which was managing the affair till March, 2005, namely Kendriya Vidyalya Sangthan. He has maintained that the education career of the students is at stake and they are going to suffer an irreparable loss.</p><p style="text-align: justify;">5. After hearing learned counsel for the parties, perusing the various averments made in both the petitions alongwith the Annexures and considering the judgments cited by the learned counsel for the parties, I am of the view that no interference of this Court would be warranted in exercise of jurisdiction under Article 226 of the Constitution because it is well settled that once in a contract or a lease agreement, there is a Clause for arbitration mutually agreed between the parties then the High Court is not to exercise jurisdiction under Article 226 of the Constitution. In this regard reliance placed on a judgment of the Supreme Court in the case of Bridge & Roof Co. (India) Ltd. (supra) is meritorious. The observations of their Lordships in paras No. 16, 17 and 18 would be relevant and the same read as under:-</p><p style="text-align: justify;">16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters, which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition viz., to restrain the Government from deducting particular amount from the writ petitioner's bill(s) was not a prayer, which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.</p><p style="text-align: justify;">17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of Sub-clause (4) of Clause 70 of the Contract is again not a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court as the case may be according to law. Similarly, if the government says that an over payment has been made to the respondent, its remedy also is the same.</p><p style="text-align: justify;">18. Accordingly, it must be held that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law. [See the decision of this Court in Assistant Excise Commissioner v. Isaac Peter : [1994]2SCR67 , where the law on the subject has been discussed fully.] The writ petition ought to have been dismissed on this ground alone.</p><p style="text-align: justify;">6. If the facts of the present case are examined in the light of the principles laid down in the aforementioned judgment, it becomes evident that the lease-deed dated 11.2.2005 (Annexure P-6) is not statutory in nature nor it has been pleaded or argued by the learned counsel for the petitioner that some statutory contract has come into being by execution of the lease deed. It necessarily leads to the inference that contract between the petitioner and respondent Nos.l to 3 is in the realm of private law. It is further evident from a perusal of Clause 33 that there is an arbitration clause provided for settling any dispute between the parties. Clause 33 of the lease agreement reads as under:-</p><p style="text-align: justify;">33. That in the event of any dispute (s) or difference (s) arising between the parties hereto as to the construction, interpretation or operation of this agreement or the respective rights and liabilities of the parties, such dispute (s) or difference (s) shall be referred to the sole arbitration of the Chief Executive of the lessor Company or his nominee, whose decision in the matter shall be final and binding upon both the parties. There shall have no objection, if the Arbitrator so appointed is an employee of the lessor and that he had to deal with the matter to which the agreement relates and that in the course of his duties, he had expressed views on all or any of the matters in dispute or defence. The Arbitrator shall give a reasoned award, if the subject matter of the arbitration shall be decided by the Arbitrator.</p><p style="text-align: justify;">Subject, as aforesaid, the provision of India <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> and the rules made thereunder, or statutory modification or re-enhancement thereof from time to time shall apply to the arbitration proceedings under the clause.</p><p style="text-align: justify;">It is thus evident that any dispute with regard to the agreement is required to be referred to the sole arbitration of Chief Executive of the respondent-Company or his nominee and the provisions of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> (for brevity 'the Act') have been made expressly applicable. Therefore, the dispute raised in the instant petition is liable to be adjudicated by virtue of arbitration clause in accordance with the provisions of the Act. Accordingly, in the presence of arbitration clause, I would not feel inclined to exercise jurisdiction under Article 226. The Act itself is a complete code and provides for comprehensive mechanism of settling dispute. It is well settled that in the face of such an arbitration clause, this Court is not to exercise extraordinary jurisdiction under Article 226 of the Constitution.</p><p style="text-align: justify;">7. The argument of the learned counsel with regard to the violation of principles of natural justice or legitimate expectations, which is another facet of the principles of natural justice would not require any detailed consideration because firstly, the lease deed between the parties is not the result of any statutory obligation nor it has a statutory character. Secondly, the grievance with regard to the violation of the principles of natural justice or legitimate expectations can always be raised before the arbitrator in accordance with the provisions of Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6). Therefore, I do not feel persuaded to accept the argument raised by the learned counsel for the petitioner.</p><p style="text-align: justify;">8. The argument with regard to the students raised in the connected petition would also not require any detailed consideration because there is no legal or vested right with the students to study in a particular school, which is to be maintained by a particular management. Moreover, with the dismissal of the connected writ petition bearing C.W.P. No. 7658 of 2005, respondent Nos.l to 3 would feel free to proceed with the restart of their school at Panipat. In any case, no mandamus could be issued in the absence of any statutory legal right creating a corresponding legal duty on the respondents. Therefore, there is no substance in the argument raised on behalf of the students.</p><p style="text-align: justify;">9. For the reasons aforementioned, these petitions fail and are, accordingly, dismissed. As the alternative remedy of arbitration is provided by Clause 33 of the lease agreement dated 11.2.2005 (Annexure P-6), there is no infringement of the right of the students, who are petitioners in the connected writ petition. No costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2006)142PLR348', 'ratiodecidendi' => '', 'respondent' => 'National Fertilisers Ltd. and ors.', 'sub' => 'Arbitration', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '629444' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Article 226 of the Constitution of India, Article 226 of the Constitution of India, Article 226 of the Constitution, Article 226 of the Constitution, Article 226 of the Constitution, Article 226 of the Constitution, the Contract Act, Article 226, Article 226, Article 226 of the Constitution.7
PERSON: M.M. Kumar, J.1, Noida, S.C.C., Ashok Aggarwal, Vikram Aggarwai, Lal Sahnia, Anr, Navkiran Singh, Isaac Peter
CARDINAL: two, 3, two, 4, 21.6.2005, 1996(2, 22, 4, 16, 4, 1994]2SCR67, 3, 33, 3
ORDINAL: First, second, second, Firstly, Secondly, firstly, Secondly
DATE: 2005, 2005, summer, 11.2.2005, 11.2.2005, March, 2005, 17, 18, 11.2.2005, 1996, 1996, 2005
ORG: the Central Academy Educational Progressive Society of India, National Fertilisers Limited, the National Fertilisers Limited, Panipat, the Central Academy Educational Progressive Society of India, the National Fertilisers Limited, National Fertilisers Limited, the Kendriya Vidalaya Sangthan, NFL, the Central Academy Educational Progressive Society of India, Court, the Supreme Court, State, U.P., Ors, Bridge & Roof Co., the Supreme Court, State of Bihar and Ors, Jain Plastics and Chemicals Ltd., Court, Supreme Court, Indian Oil Corporation Ltd., Ors, National Fertilisers Limited, the Supreme Court, Food Corporation of India, Kamdhenu Cattle Feed Industries, Court, the High Court, the Supreme Court, Bridge & Roof Co., India) Ltd., Lordships, the Sale of Goods Act, Civil Court, Government, the High Court, the High Court, prayer.17, Contract, the Civil Court, the Civil Court, Court, Clause 33, India Arbitration, the Arbitration and Conciliation Act, Court
GPE: India, Kendriya, Panipat
NORP: Harbans, Mandamus