Patna High Court
M/S Brahmaputra Infrastructure ... vs The State Of Bihar & Ors on 17 May, 2017
Author: Rajendra Menon
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
Request Case No.12 of 2017
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M/s Supreme Brahmaputra (JV), having its registered office at Brahmaputra House,
A/7, Mahipalpur, New Delhi- 110 037 through its Manager Project Sri Alakh Nath
Sinha, son of Late Pasupati Nath Sinha, resident of G-6, Ashadeep Apartment,
Purulia Road, Namkum, Ranchi- 834010 (Jharkhand)
.... .... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Water Resources
Department, Government of Bihar, Patna.
2. The Engineer-in-Chief (Central), Water Resources Department, Government of
Bihar, Patna
3. The Chief Engineer, Water Resources Department, Siwan
4. The Executive Engineer, Irrigation Department, Siwan.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ashish Giri, Advocate
For the Respondent/s : Mr. Anjani Kumar, AAG-4
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CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date: 17-05-2017
Learned counsel for the petitioner is permitted to make
necessary correction in the cause-title.
Invoking the jurisdiction of this Court under Section
11(6) of the Arbitration and Conciliation Act, 1996, this application
has been filed.
An agreement was entered into between the parties on
22.06.2012in the matter of construction of a Pucca road on Service Road of Saran Main Canal, Marhaura Branch Canal, Kataya Branch Canal and Hathua Branch Canal under Saran Canal System including Division and Canal-wise overall implementation as per schedule for execution of the work.
Patna High Court REQ. CASE No.12 of 2017 dt.17-05-2017 2/5 In the execution of the agreement, as certain disputes arose, the petitioner invoked the arbitration clause in the agreement and when the arbitrator, in pursuance to the agreement was not acceded to, this application has been filed and placing reliance to Clause 25 of the Dispute Resolution Mechanism as contained in the agreement, a prayer is made that an arbitrator may be appointed.
Learned counsel for the petitioner invites my attention to Clause 25 of the Disputes Resolution Mechanism provided in the agreement and submits that parties shall agree for resolution of the dispute in accordance with the Arbitration and Conciliation Act, 1996 or any other statutory modification made thereunder and submits that as the respondents have not taken any action for referring the matter for arbitration, an arbitrator be appointed by this Court.
Learned counsel appearing for the respondents raised a preliminary objection with regard to maintainability of this application under Section 11 in view of the provisions of the Bihar Public Works Contracts Disputes Arbitration Act, 2008 (hereinafter referred to as "the State Act‟) and submits that once the work „in contract‟ falls within the purview of a „work contract‟ as contemplated under the State Act, the provisions of Arbitration and Conciliation Act, 1996 will not be applicable and action will have to be taken for resolution of the disputes in accordance with the State Patna High Court REQ. CASE No.12 of 2017 dt.17-05-2017 3/5 Act.
Refuting to the aforesaid objection, learned counsel for the petitioner invites my attention to the order dated 17.10.2014 passed by a coordinate Bench of this Court in Request Case No. 1 of 2014, M/S Nilkamal Ltd. Vs. The State of Bihar and others and submits that similar argument has been rejected and by referring to the principles laid down in Paragraph Nos. 31, 39 and 40 of the aforesaid judgment, he submits that the objection needs to be rejected. However, Sri Anjani Kumar, learned Additional Advocate General-4 refuted the aforesaid contentions and submits that once the contract in question is a „works contract‟ and State Act is applicable to such a contract, the application is not maintainable.
Having considered the rival contentions of the parties, I am of the considered view that the issue is no more in dispute. It has already been resolved and answered in favour of the petitioner in the case of M/S Nilkamal Limited (supra). In Paragraph 31 of the aforesaid judgment, learned Judge has expressed a view that if the agreement is silent or if there is specific stipulation about the resolution of the dispute through the State Tribunal then the forum of approaching the State Tribunal will have to be resorted to resolve the dispute, else the principles as laid down in Paragraph Nos. 39, 40 will be applicable and the same is taken note of :
Patna High Court REQ. CASE No.12 of 2017 dt.17-05-2017 4/5 "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 entering 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-à-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 Act received the assent of the President of India as provided under Article 254 of the Constitution of India but in the present case the State Act was not reserved for assent of President of India and so much so Section 8 of the State Act makes it clear that in case of conflict Central Act will prevail."
It is clear that the provisions of the State Act will not be applicable and the dispute in question will be covered by the provisions of the Central Act and as parties have agreed to resolve the Patna High Court REQ. CASE No.12 of 2017 dt.17-05-2017 5/5 issue by taking resouse to the remedy available under Clause 25 of the agreement, I see no reason to oppose the objection. The objection raised by Mr. Anjani Kumar, learned Additional Advocate General-4, is overruled.
Sri Justice Ramesh Kumar Datta, a retired Judge of this Court is appointed as Arbitrator to resolve the dispute between the parties.
The application is allowed.
(Rajendra Menon, CJ)
P.K.P.
AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 20.05.2017
Transmission
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