Madhya Pradesh High Court
Mrs. Kamini Malhotra vs State Of M.P. And Ors. on 26 April, 2002
Equivalent citations: AIR2003MP13, 2002(5)MPHT245, AIR 2003 MADHYA PRADESH 13, 2002 (49) ARBI LR 228, (2002) 3 MPLJ 389, (2002) 49 ARBILR 228
ORDER V.K. Agarwal, J.
1. This Misc. Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Act' for short) is directed against the order dt. 7-3-2002 in Arbitration Case No. 3/2002 by Ninth Additional District Judge, Jabalpur, holding that, the Civil Court has no jurisdiction to entertain and decide the application under S. 9 of the Act.
2. The appellant is the proprietor of M/s. Gaurav Builders, which specialises in installation and construction of Water Treatment Plants. A notice inviting tender dt. 16-11-1993 (Annexure A-1) was issued for design, construction and commission of Water Treatment Plant near Lalpur for Jabalpur Water Supply Scheme. The appellant in response to the above tender submitted her bid. Appellant's tender was accepted and contract was awarded to the appellant by letter dt. 14-8-95. The appellant in pursuance of the contract submitted the design of said plant and started execution of the said work, However, the work could not be completed within the time stipulated between the parties and a dispute arose between them.
3. According to the appellant, she could not complete the work within the specified period because of the default on the part of respondents, e.g. delay in approval of the design, delayed payment of running bills to her etc., as per the agreement. According to the appellant, she completed the work originally assigned to her, as well as some additional work and informed respondent No. 4 that a pump including ancillaries has to be installed to draw water. However, the respondents did not take necessary steps to do so. Thereafter, the respondents invited tender for the remaining work of Water Treatment Plant, vide publication in daily newspaper 'Nav Bharat' dt. 18-1-2002 (Annexure A-8). The respondents as per letter dt. 4-2-2002 (Annexure A-9) also intimated the appellant that she could not complete the work as per schedule upto 28-2-2001, hence the balance work was proposed to be executed at the risk and cost of appellant. In response to the said letter, the appellant submitted representation (Annexure A-10) pointing out that she was not at fault and that the respondents have violated the terms and conditions of contract between the parties. In view of notice (Annexure A-8) by respondents, the appellant moved an application under Section 9 of the Act (Annexure A-11) in the lower Court, praying that the respondents be restrained from taking action in pursuance to the said notice inviting tenders.
4. The respondents Nos. 1 to 4 resisted and raised objections as per their reply (Annexure A-12) regarding appellant's application (Annexure A-11) under Section 9 of the Act. A preliminary objection was raised by them regarding the maintainability of said proceedings under Section 9 of the Act. It was averred on behalf of respondents that the work to be executed by the appellant was a "Works Contract" as defined in M. P. Madhyastham' Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short). It was therefore averred that the jurisdiction of the Civil Court is barred.
5. By the impugned order the trial Court upheld the respondents' objection as above and held that the contract between the parties is 'Works Contract' as defined in Adhiniyam. Therefore, it was held that, as provided under Sections 7 and 20 of the Adhiniyam, Civil Court had no jurisdiction. Accordingly, appellant's application (Annexure A-11) under Section 9 of the Act, was ordered to be returned for presentation to the proper forum.
6. Learned counsel for appellant has assailed the impugned order, It was submitted that the contract between the parties did not fall within the definition of 'Works Contract' and that the said expression has been misconstrued by the learned lower Court. It was submitted that the provisions of Adhiniyam are not attracted and the Civil Court was competent and had jurisdiction to consider and decide the application under Section 9 of the Act.
7. As against the above, the learned counsel for respondents supported the impugned order. It was submitted that the trial Court was justified in holding the contract between the parties to be 'Works Contract' within the meaning of Section 2(1) of the Adhiniyam. In the above context, it was urged that the nature of work to be undertaken for erection of 'Water Treatment Plant' was basically construction of tanks and buildings. It was therefore submitted that the trial Court rightly held it to be 'Works Contract'.
8. The basic question that deserves consideration in this appeal is; as to whether the jurisdiction of the Civil Court to entertain application under Section 9 of the Act is barred?
9. It may be noticed that the provisions of the Act are applicable in cases of disputes referable to arbitration. Section 9 thereof provides :
"A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court-
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely :
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it."
10. It may further be noticed that Section 7 of the Adhiniyam provides that either party to 'Works Contract' irrespective of the fact whether the agreement contains an arbitration clause or not, refer a dispute to the tribunal. Section 20 of the Adhiniyam further provides that from the date of constitution of tribunal and notwithstanding anything contained in Arbitration Act or any other law, for the time being in force, or in any agreement or usage to the contrary, no Civil Court shall have jurisdiction to entertain or decide any dispute of which cognizance can be taken by the tribunal under this Act.
11. It would therefore be clear that Section 9 of the Act would not be applicable in case the work to be executed was a 'Works Contract'. Therefore, the question that requires consideration is as to whether the contract between the parties was a 'Works Contract"?
12. 'Works Contract' has been defined in Section 2(i) of the Adhiniyam, as under :--
"Works Contract'-- means an agreement in writing for the execution of any work relating to construction, repair, or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory, work-shop, power house, transformers or such other works of the State Government or Public undertakings as the State Government may by notification, specify in this behalf at any of its stages, entered into by the State Government or by an official of the State Government or Public undertaking or its official for and on behalf of such public undertaking and includes an agreement for the supply of goods or material and all other matters relating to the execution of any of the said works."
13. Thus, as per the said definition under Section 2(i) of the Adhiniyam 'Works Contract' 'means' agreement in writing for the execution of any work as specified in the said provision.
14. Learned counsel for appellant has submitted that the use of word 'means' in Clause (i) of Section 2 of Adhiniyam, clearly indicates that the definition is a hard and fast definition and therefore except for the works specified in the said clause, no other work could be treated as 'Works Contract'. In other words the said definition excludes all other works, which are not specified in the said definition.
15. Learned counsel for appellant in the above context referred to P. Kasilingam v. P. S.G. College of Technology, AIR 1995 SC 1395 wherein, it has been observed that the use of word 'means' indicates that the definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down in definition. In Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court Chandigarh (1990) 3 SCC 682 it has been observed by the Apex Court that a definition is an explicit statement of full connotation of a term. It has further been observed that when a statute says that a word or phrase shall 'mean' --certain things or acts, the definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down In definition.
16. Since, as per Section 2(i) of the Adhiniyam 'Works Contract' means an agreement in writing for the execution of any work specified therein; it is clear that a work to constitute and to be construed as 'Works Contract' must be strictly covered by the works specified in the said definition and that no other work should be treated as 'Works Contract'.
17. Learned counsel for respondents in the above context submitted that, Water Treatment Plant, essentially consists of buildings and water tanks. It was therefore submitted that the name 'Water Treatment Plant' used in the contract between the parties, by itself would not exclude the said work executed by the appellant, from the category or definition of 'Works Contract'. It has been submitted that the Water Treatment Plant was construction of such buildings and tanks, the details of which are given in (Annexure R-3). It was submitted in the above context that all the components of Water Treatment Plant basically consisted of building or storage tanks. In the above context photographs (Annexure R-4) to (Annexure R-9) are also filed, to indicate the nature of work and construction relating to the Water Treatment Plant executed by the appellant.
18. It has further been submitted by the learned counsel for respondents that Section 2(i) of the Adhiniyam provides that, a 'Works Contract' means an agreement in writing for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir tank, etc. Learned counsel for respondents emphasised that thus the definition of 'Works contract' covers 'any' work relating to construction, repair or maintenance of 'any' building or superstructure, which clearly indicates that all buildings or superstructures or constructions arc to be covered by the said definition of 'Works Contract'. It was therefore submitted that, since the Water Treatment Plant basically includes construction of building and water storage plant, it was fully covered by the definition of 'Works Contract'.
19. In the above context learned counsel for respondents submitted that, the word 'any' has been explained in Black's Law Dictionary and it has been stated therein that the word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and subject matter of statute. It is often synonymous with 'either', 'every' or 'all'. The Supreme Court in Lucknow Development Authority v. M. K. Gupta AIR 1994 SC 787 had considered the meaning and purport of word 'any' in the context of Consumer Protection Act, 1986 and has quoted the above definition of the said word in Black's Law Dictionary and has observed that its meaning in a given statute depends upon the context and subject matter of the statute.
20. In the instant case, it is clear that the word 'any' in Section 2(i) of the Adhiniyam appears to have a very wide spectrum, because it relates to the execution of any work relating to construction, repairs or maintenance of 'any' building or superstructure, tank, canal, reservoir, etc. The repetition of word 'any' in the said definition prior to the word 'work' as well as before the nature of construction, e.g. building, superstructure, etc., clearly indicates the intention of legislature to provide for its wide amplitude and application. Therefore, it appears that the definition of 'Works Contract' as given in Section 2(i) of the Act, applies to all works of construction, repairs or maintenance of all types of buildings, superstructures, reservoirs, tanks, etc.
21. Therefore, all types of building, tanks whatever be its technical nomenclature, would be covered under the said definition of 'Works Contract'. In Ghanshiam Das v. Debi Prasad, AIR 1966 SC 1998 the Supreme Court with reference to U.P. Zamindari Abolition and Land Reforms Act, observed :
"The word building has not been defined in the Act and is, therefore, to be construed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. So construed according to the dictionary meaning, the existence of a roof is not always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for useful purpose."
22. As noticed earlier, the use of word 'any' building etc. used in Section 2(1) of the Adhiniyam appears to be of a very wide connotation and 'any' work relating to building appears to have been intended to be included in the definition of 'Works Contract'. As noticed earlier, in the instant case basic work constituting Water Treatment Plant, included construction of buildings as well as of storage tanks and reservoirs. Necessary ancillary, gadgets and implements for purification and cleansing of water would also have to be constructed. But such anciliaries would not change the basic nature of work to be executed by the appellant, which essentially was the construction of buildings and storage tanks. Therefore, the work undertaken to be executed by the appellant was covered within the meaning and definition of 'Works Contract'.
23. Therefore, the learned trial Court was justified in holding that the work entrusted and executed by the appellant was a 'Works Contract'. In view of above, the said findings does not call for any interference. In view of above, the dispute between the parties was referrable to the Arbitration Tribunal and the jurisdiction of Civil Court was barred, as provided under Section 7 and 20 of the Adhiniyam, Accordingly, the trial Court was justified in holding that it had no jurisdiction to decide the application under Section 9 of the Act.
24. Therefore, there is no substance in this appeal. It is accordingly dismissed.