TMI Blog2019 (6) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Respondent : Mr Anjani Kumar JUDGMENT 1.The present review petition has been filed seeking review of the order dated 30.11.2018 passed in CWJC No. 13292 of 2018 whereby and whereunder the writ petition was disposed of with a direction to the petitioner to move before the Bihar Public Works Contract Disputes Tribunal (hereinafter referred to as the Tribunal ) within one month for resolution of the disputes, which has arisen between the parties, arising out of the agreement in question. 2. It appears that thereafter, the petitioner had moved the Tribunal by filing a petition bearing Reference Case No. 341 of 2018 on 21.12.2018, however, the learned Tribunal, during the course of hearing of the said reference case, observed that the said reference case is not maintainable in view of the decision rendered by the Hon'ble Apex Court dated 22.03.2018 passed in Civil Appeal No. 3344 of 2018 (State of Bihar Ors. v. M/S Brahmaputra Infrastructure Ltd.), paragraphs no.2 to 6 whereof are reproduced herein below:- (2) The State is aggrieved by the appointment of arbitrator under Section 11(6) of the Arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award including an interim award as confirmed or varied by an order, if any, made under section- 12 or 13 shall be deemed to be a decree within the meaning of section-2 of the Code of Civil Procedure, 1908 of the Principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly. (22). Overriding effect of this Act.-Notwithstanding any thing contained in any other Law, Rule, Order, Scheme, or Contract Agreement entered into before or after commencement of this Act, any dispute as defined in Section 2(e) of this Act shall be regulated under the provisions of this Act, Rules and Regulations framed thereunder, and absence of arbitration clause in any contract agreement shall not have effect excluding any dispute from the purview of this Act. (4) It is not in dispute that the parties have executed agreement dated 22nd June, 2012, providing for appointment of an arbitrator as per provisions of the Central Act. Relevant portion of Clause 25 of the said Agreement is as follows:- The arbitration shall be conducted in accordance with provisions of the Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Ganguly, J. and paragraphs no. 53, 54, 55 and 58 being the view expressed by Hon'ble Mrs. Gyan Sudha Mishra, J.:- 25. In para 28 of the judgment, this Court while referring to the provisions of the M.P. Act held: (Anshuman Shukla case5, SCC pp. 497-98) 28. The provisions of the Act referred to hereinbefore clearly postulate that the State of Madhya Pradesh has created a separate forum for the purpose of determination of disputes arising inter alia out of the works contract. The Tribunal is not one which can be said to be a domestic tribunal. The Members of the Tribunal are not nominated by the parties. The disputants do not have any control over their appointment. The Tribunal may reject a reference at the threshold. It has the power to summon records. It has the power to record evidence. Its functions are not limited to one Bench. The Chairman of the Tribunal can refer the disputes to another Bench. Its decision is final. It can award costs. It can award interests. The finality of the decision is fortified by a legal fiction created by making an award a decree of a civil court. It is executable as a decree of a civil cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. In view of the aforesaid entry, the State Government is competent to enact laws in relation to arbitration. 39. The M.P. Act of 1983 was made when the previous Arbitration Act of 1940 was in the field. That Act of 1940 was a Central law. Both the Acts operated in view of Section 46 of the 1940 Act. The M.P. Act, 1983 was reserved for the assent of the President and admittedly received the same on 17-10-1983 which was published in the Madhya Pradesh Gazette Extraordinary dated 12-10-1983. Therefore, the requirement of Article 254(2) of the Constitution was satisfied. Thus, the M.P. Act of 1983 prevails in the State of Madhya Pradesh. Thereafter, the AC Act, 1996 was enacted by Parliament repealing the earlier laws of arbitration of 1940. It has also been noted that the AC Act, 1996 saves the provisions of the M.P. Act, 1983 under Sections 2(4) and 2(5) thereof. Therefore, there cannot be any repugnancy. 41. It is clear from the aforesaid observations that in the instant case the latter Act made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the works contract itself has been repudiated and hence not in existence at all by virtue of its cancellation/termination, then in my considered view, the dispute will have to be referred to an independent arbitrator to be appointed under the Arbitration and Conciliation Act, 1996 since the M.P. Act, 1983 envisages reference of a dispute to the State Tribunal only in respect of certain specified types of arbitration enumerated under Section 2(i) of the M.P. Act, 1983. 55. As a consequence and fallout of the aforesaid discussion, the impugned order of the High Court by which the dispute relating to termination of works contract by the M.P. Rural Road Development Authority itself was referred to an independent arbitrator appointed by the High Court under the Arbitration and Conciliation Act, 1996 needs to be sustained and there is no need for a de novo reference of the dispute to the M.P. State Arbitration Tribunal. In the alternative, the consequence would have been otherwise and the matter could have been referred to the State Arbitration Tribunal if the dispute between the parties related to any dispute emerging out of execution of works contract which could fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid judgment rendered in the case of L.G. Chaudhary Engineers and Contractors (supra) is the correct interpretation and not the contra view of the other Hon'ble Judge of the said Bench. It has also been held that M.P. Madhyastham Adhikaran Adhiniyam, 1983 i.e. the State Act will prevail in terms of Section 2(4) of the Arbitration and Conciliation Act, 1996 and reference to the M.P. Arbitration Tribunal under the said law is valid. It would be apt to reproduce paragraphs no. 5,8, 10, 12, 14 and 37 of the said judgment rendered by the larger Bench herein below:- 5. We find from the definition under Section 2(d) of the Arbitration and Conciliation Act, 1996 that even after a contract is terminated, the subject matter of dispute is covered by the said definition. The said provision has not been even referred to in the judgment rendered by Hon'ble Gran Sudha Mishra, J. 8. We are, thus, in agreement with the proposed opinion of Hon'ble Ganguly, J. in para 42 of the reported judgment which reads as follows: (M.P. Rural Road Development case, SCC p. 509, para 42.). 42. Therefore, appeal is allowed and the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Act. The reference under the State law was valid and could be decided in accordance with the State. Accordingly, we set aside the impugned order and restore the proceedings before the Tribunal. The appeal is accordingly, allowed in above terms. 37. In the circumstances, pending arbitration proceedings shall stand transferred to the M.P. Arbitration Tribunal under the M.P. Act, to be dealt with as per provisions of the M.P. Act in accordance with law. The proceedings may be carried out in continuation of earlier proceedings. The parties may take steps by moving the High Court or any other forum for transfer of records to the transferee courts in the light of this order. The appeal is accordingly disposed of. The parties may appear before the High Court/ Tribunal for further proceedings on 0.7.2018. 8. Having regard to the aforesaid judgment rendered by a three Judges Bench of the Hon'ble Supreme Court dated 8.3.2018, as reported in 2018(10) SCC 826 at 833, it is contended that the judgment rendered by the Hon'ble Apex Court in the case of M/S Brahmaputra Infrastructure Ltd. (supra) dated 22.3.2018 is per incuriam. It is further poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has exclusive power to make laws with respect to any of the matters enumerated in List I in Seventh Schedule, Article 246(2) of the Constitution provides that notwithstanding anything in clause (3), Parliament and, subject to clause(1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule and clause (3) of Article 246 provides that subject to clauses (1) and (2), the Legislature of any state has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh schedule. Article 254 of the Constitution deals with inconsistency between the laws made by the Parliament and law made by legislature of State provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 9, 10, 11, 12, 13, 14 and 22. Section 2(e) of the definition section defines that dispute means any difference relating to any claim arising out of the execution or non-execution of the whole or part of a contract for works or services or both including the rescinding thereof. Section 2(k) as explained very elaborately, not required to be dealt with again. Section 8 of the State Act is very important for this case which is as follows: 8. Act to be in addition to Arbitration Conciliation Act, 1996.- Notwithstanding anything contained in this Act, any of the provisions shall be in addition to and supplemental to Arbitration and Conciliation Act, 1996 and in case any of the provision contained herein is construed to be in conflict with Arbitration Act, then the latter Act shall prevail to the extent of conflict. 29. The section starts with the word, notwithstanding anything in the State Act any of the provisions shall be in addition to and supplemental to Arbitration and Conciliation Act, 1996 and in case of any provision is in conflict with the Arbitration Act, 1996 to the extent of conflict Arbitration Act, 1996 the Central Act, would prevail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement is silent or if there is specific stipulation about the resolution of dispute through the State Tribunal in that circumstances the parties will have a forum of Tribunal under the Act for resolution of the dispute. 39. In view of the judgments aforesaid it is apparently clear from the State Act and Central Act both are supplemental to each other and State Act is no derogation to the Central Act. In this situation it is very difficult to arrive to the conclusion of excluding the jurisdiction of this Court in entertaining the application for appointment of arbitrator when the agreement provides that the dispute will be resolved through Arbitration Act, 1996. 40. In support of his contention learned counsel for the respondent has relied on the judgment of the Hon'ble Supreme Court in the case of Madhya Pradesh Rural Road Development Authority (supra) where similar Arbitration Act has been enacted by the State of Madhya Pradesh. The question arose about the applicability of the State Act vis- -vis Central Act. The two Judges Bench of Hon'ble Supreme Court could not arrive to a conclusion, matter referred to larger Bench, there the State Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt dated 29.3.2017 before the Hon'ble Apex Court and the Hon'ble Apex Court, by the aforesaid judgment dated 22.3.2018 has upheld the view taken by this Court in the case of Nilkamal Ltd. (supra) as also has upheld the judgment dated 29.3.2017 passed in the case of M/S Brahmaputra Infrasture Ltd. (supra) by a co-ordinate Bench of this Court and has held that in cases where arbitration agreement exists and stipulates applicability of the Central Act, the Bihar Act, 2008 will not apply, however, in absence of an agreement stipulating the applicability of the Central Act, the Bihar Act, 2008 will apply to the works contract. This Court finds that there is no inconsistency in the judgment rendered by the Hon'ble Apex Court dated 22.3.2018 passed in the case of Brahmaputra Infrastructure Ltd. (supra) and the one dated 8.3.2018 passed in the case of M.P. Rural Road Development Authority Anr. vs. L.G. Chaudhary Engineers and Contractors, inasmuch as both the judgments are based on the provisions of the State Act of both the respective States as also have been rendered considering the fact that the M.P. Madhyastham Adhikaran Adhiniyam, 1983 has received the presidential assen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
