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3. The facts, in brief, as projected by the applicant {in ARBR No. 48/2024} is that the applicant Company is an ISO 9001-2008 Company started civil construction contracts as a proprietary / partnership firm has been in the business of executing EPC Contracts ever since its incorporation in 1982 in a wide arena of projects pertaining to Central and State Governments, Public Sector Companies, Railways, Power Plants, Steel Plant, Mines, Roads, Bridges etc. Pursuant to a Notice Inviting Tender (for short, the NIT) being NIT No. GM(C)/SECL/BSP/Et-Tk/ GVR/2020/185 dated 15.06.2020 issued on behalf of the respondent No. 1-South Eastern Coalfields Ltd. (for short, the SECL) inviting tenders for carrying out work of design, and commissioning of workshop and store of Gevra OCP, including maintenance during defect liability period (DLP), on turnkey basis, the applicant submitted its bid/offer for the said work. The said NIT comprised of, inter alia, 'Instructions to Bidders' (for short, the ITB) and 'General Terms and Conditions of Contract' (for short, the GCC). The offer of the applicant was accepted and a Letter of Award Ref. No. GM(C)/SECL/BSP/WO/GVR/2020/95 dated 08.11.2020 was issued in favour of the applicant for the said work. Clause 31 and 32 of the ITB provided that an amount of 1% of the work value payable to the contractors will be deducted from all bills towards worker's welfare under Building and Other Construction Worker's Welfare Cess Rules, 1998 and Building and other Construction Workers Welfare Cess Act, 1996. In terms of the provisions of clause 20.5 of ITB, a formal agreement dated 06.03.2021 was executed between the parties for carrying out the said work covered by the Purchase Order. The ITB and the GCC were part of the agreement dated 06.03.2021. While making payment of running invoices/ bills of the applicant, the respondent-SECL started deducting cess in terms of clause 31 of the ITB as set out above.

"(3) Notwithstanding the provisions of sub-rule (1) and sub-rule (2), where the levy of cess pertains to building and other construction work of a Government or of a Public Sector Undertaking, such Government or the Public Sector Undertaking shall deduct or cause to be deducted the cess payable at the notified rates from the bills paid for such works".

7. It is only in a situation in which the provisions of BOCW Act applies to an activity in a particular establishment, that the provisions of Rule 4(3) confer jurisdiction or power on an organization which is getting such activities executed by another concern/ contractor to deduct cess payable from the bills of the other concern/ contractor executing the work. As the BOCW Act is not applicable for setting up and maintenance of a workshop in the precincts of a coal mine, no cess is leviable in terms of Section 3(1) of the BOCW Cess Act and hence no deduction is permissible in terms of Rule 4(3) of the Cess Rules. The said Rule authorises deduction of the cess payable which obviously means cess leviable under Section 3 of the BOCW Cess Act. Further, as no cess is payable in respect of the operations of the applicant under Section 3, it is illegal to deduct the same from the bills of the applicant. The aforesaid clause 31 of the ITB forming part of the contract contemplates deduction of cess under the BOCW Cess Act and BOCW Cess Rules, the respondent-SECL has no power, authority or jurisdiction to deduct cess in terms of the said clause 31 and all such deductions are illegal and unauthorised and liable to be refunded by the respondent. After the applicant was advised that the BOCW Act and consequently the BOCW Cess Act and the BOCW Cess Rules were not applicable for any work or activity in the course of construction of Coal Handling Plant (CHP) and no cess could be deducted under the BOCW Cess Act or BOCW Cess Rules from payments in respect of the invoices/ bills of the applicant in respect of the work covered under the Agreement in question ( as stated above), the applicant raised the contention that no cess was deductible from payments against its bills under BOCW Cess Act or BOCW Cess Rules. The issue was raised by the applicant with the respondent-SECL through several letters being SKSL Letter No./174/0011/PROJ-22/ SECL/CBG/1508 dated 20.10. 2023, SKSL Letter No. 168/172, 173,174/0011/PROJ-202, 214, 218 and 222/SECL/ CBG/1536 dated 30.10.2023., SKSL Letter No. 168, 172,173,174/ 0011/Proj-202, 214, 218 and 222/SECL/CBG/1610 dated 08.11.2023., SKSL Letter No. 168,172,174/0011/PROJ-202,214,218 and 222/SECL/ CBG/1706 dated 24.11.2023., SKSL Letter No. 174/0011/PROJ-202/ SECL/CBG/1721 dated 25.11.2023., SKSL Letter No. 168, 172, 173, 174/0011/proj-202,214,218,222/SECL/CBG/2032 dated 11.01.2024., SKSL Letter No. 168, 172, 173, 174/0011/PROJ-202, 214,218,222/ SECL/CBG/0362 dated 09.05.2024., SKSL Letter No. 168, 172, 173, 174/0011/Proj-202,214,218,222/SECL/CBG/0739 dated 20.06.2024. and Ref. No. 168, 172, 173, 174/0011/PROJ-202, 214,218,222/ SECL/CBG/1073 dated 27.07.2024 written to the respondent demanding refund of BOCW Cess illegally deducted from payments made to the applicant against its bills. In the meantime, the respondent- SECL had written a letter dated 22.05.2024 alleging that the amount of BOCW Cess which has been recovered from various contracts have been deposited with the State authority and therefore the respondent- SECL would not be in a position to refund the amount from its own fund. However, the respondent-SECL did not take any step for refunding the cess illegally deducted even after completion of all payments under the contract, and thus, by conduct and/ or in effect and/ or by implication, the respondent rejected and /or repudiated the claim asserted by the applicant giving rise to disputes and differences between the applicant and the respondent regarding non-deductibility of BOCW cess in law and non-refund of cess illegally deducted. The applicant, by its letter dated 31.07.2024 made a request to the General Manager, of the respondent-SECL for appointment of a Dispute Redressal Committee in terms of Clause 42.0 of the GCC forming a part of the agreement. The applicant further stated that in case the dispute regarding refund of the deducted BOCW Cess cannot be resolved by the Committee, the applicant would wish to proceed for Settlement of Dispute through Arbitration in terms of Clause No. 42A of the GCC forming part of the agreement. However, the respondent-SECL did not settle the dispute/ difference as aforesaid nor did it constitute any Committee. The respondent also failed to appoint an Arbitrator and the differences persisted. In the circumstances, the applicant wrote a letter 23.08.2024. reiterating its request for appointment of an Arbitrator. In the instant case, the agreed procedure for appointment of arbitrator is contained in Clause 42A of the GCC forming a part of the agreement as stated above, the respondent-SECL has failed to act as required under the said agreed procedure. The agreement on the appointment procedure does not provide any other means for securing the appointment. As such, this Hon'ble Court may be pleased to appoint a Sole Arbitrator for adjudicating the disputes and differences that have arisen between the parties. Whether or not the BOCW Act, BOCW Cess Act and the Rules are applicable in case of the applicant, can also be adjudicated by the Arbitrator so appointed by this Hon'ble Court.

11. Rejoinder has been filed by the applicant controverting the submissions made by the respondent-SECL and the respondent-State, to submit that firstly, the all the issues raised as aforesaid constitute arbitrable disputes which have to be decided by the Arbitral Tribunal. All objections raised by the respondents, (including the objection that disputes/ issues on levy of BOCW Cess can be decided only under the machinery provided under relevant laws and that the said issue/ dispute has in fact already been decided in the present case), can and ought to be decided in arbitration, particularly when Section 16 of the Arbitration and Conciliation Act, 1996 has been construed in an expansive way to comprehend consideration of all preliminary objections of the party raising preliminary objections to the reference. This Court has a limited role at the referral stage as it is limited to examining whether an arbitration agreement exists. Issue of non-arbitrability is not to be decided by the referral court at the referral stage but by the Arbitral Tribunal. Dispute in this case is not between the applicant and the State of Chhattisgarh. Dispute is on the scope and effect of clause 31 and 32 of ITB and as to whether SECL has a right to deduct BOCW Cess under the said clauses of ITB. Relationship between applicant and SECL is contractual and the disputes are purely contractual. The disputes pertain to applicability of clauses 31 and 32 of the ITB. The disputes do not pertain to any sovereign function of the State. The BOCW Cess Act or BOCW Cess Rules do not expressly or by necessary implication bar arbitration. In any case such issue is to be decided by the Arbitral Tribunal. Further, it was not at all necessary to implead respondent No.2 or Respondent No.3 or for that matter anybody other than the respondent No.1-SECL because the disputes are contractual disputes between the applicant and the respondent No.1 which calls for interpretation of the provisions of Clause No.31 and Clause No.32 of the ITB and in particular the applicability of those provisions in a situation where the BOCW Act or BOCW Cess Act or BOCW Cess Rules does not apply. In any event, non-signatory to an arbitration agreement can be added as party in the reference. Arbitral Tribunal is the most appropriate forum to decide the said aspect. The question as to whether a non- signatory to an arbitration agreement can be added as a party to the arbitration reference involves consideration of various complex tests, factors and considerations and ought to be left to be decided by the Arbitral Tribunal. In support of his contentions, reliance is placed on the decision rendered by the Apex Court in Interplay Agreements Between Arbitration Under Arbitration And Conciliation Act, 1996 And Stamp Act, 1899, In Re {(2024) 6 SCC 1}, Uttarakhand Purv Sainik Kalyan Nigam Limited v. Northern Coalfield Limited {(2020) 2 SCC 455}, Motilal Oswal Financial Services Limited v. Santosh Cordeiro and Another {2026 (2) SCC 801}, Cox And Kings Limited v. Sap India Private Limited And Another {(2024) 4 SCC 1}, Lifeforce Cryobank Sciences Inc. v. Cryoviva Biotech Pvt. Ltd. & Others {2024 SCC OnLine SC 3215}, ASF Buildtech Private Limited v. Shapoorji Palomji And Company Private Limited {(2025) 9 SCC 76}, Ajay Madhusudan Patel & Others v. Jyotirindra S. Patel & Others {(2025) 2 SCC 147} and a judgment of this High Court in Larsen & Toubro Limited v. State of Chhattisgarh {2018 scc online chh 317} and a judgment of Calcutta High Court in Anjanee Kumar Lakhotia v. Maruti Maheshwari & Others {2025 SCC OnLine Cal 7956}.

16. The dispute sought to be referred by the applicant does not arise merely out of a contractual interpretation simpliciter, but essentially pertains to the applicability and operation of the provisions of the BOCW Act, BOCW Cess Act and BOCW Rules. The deduction of cess at the rate of 1% from the running bills of the applicant has been made pursuant to statutory provisions, Government notifications and the contractual stipulations consciously accepted by the applicant at the time of entering into the agreement. Clause 31 of the ITB specifically provided for such deduction and Clause 32 made the ITB an integral part of the contract agreement. The applicant, being fully aware of these conditions, participated in the tender process and executed the agreement without demur.