M/s Manish Pipes Pvt.ltd. Vs State Of Chhattisgarh And Anr.

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Digitally signed by GOPAL SINGH Date: 2024.12.12 11:42:58 +0530

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2024:CGHC:44351

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPC No. 628 of 2014

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1 - M/s Manish Pipes Pvt. Ltd. Through Its Director Shri Jagdish Jhawar, Director, B -13 Industrial Area Rawanbhata, PS And Post Office Khamtarai, Raipur, Civil And Revenue Distt. Raipur, Chhattisgarh

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---- Petitioner

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versus

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1 - State of Chhattisgarh Through The Chief Engineer, Public Health Engineering Department, Raipur, Chhattisgarh

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2 - The Executive Engineer, Public Health Engineering Department, Project Division, Nehru Nagar (West) Water Tank, Bhilai, Distt. Durg Chhattisgarh

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---- Respondents

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and

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WPC No. 625 of 2014

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1 - M/s Manish Pipes Pvt. Ltd. Through Its Director Shri Jagdish

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Jhawar, Director, B -13 Industrial Area Rawanbhata, PS And Post Office Khamtarai Raipur Civil And Revenue Distt. Raipur, Chhattisgarh

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---- Petitioner

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versus

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1 - State of Chhattisgarh Through The Chief Engineer, Public Health Engineering Department, Raipur, Chhattisgarh

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2 - The Executive Engineer, Public Health Engineering Department, Project Division, Nehru Nagar (West), Water Tank, Bhilai, Distt. Durg, Chhattisgarh

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--- Respondents

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(Cause title is taken from Case Information System)

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For Petitioner : Shri B.P. Sharma with Shri Samdarsh Nirankari, Advocates For State/Respondents : Shri R.C.S. Deo, Panel Lawyer

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Hon’ble Shri Justice Amitendra Kishore Prasad

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Order on Board

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13/11/2024

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1. Since in both the writ petitions the issues involved are common, they are decided by this common order.

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2. Both the petitions are directed against the order dated 8.10.2013 passed in M.J.C. No.7 of 2013 by the Chhattisgarh Madhyastham Adhikaran, Raipur by which it has dismissed the application for restoration of Reference Petitions No.1 of 2009

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and 1 of 2010.

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3. Learned Counsel appearing for the Petitioner submits that earlier the Petitioner had moved an application under Section 7A of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (henceforth ‘the Adhiniyam, 1983’) for referring the dispute in respect of contract for manufacturing, supplying, laying and jointing of steel pipes in lines and the same has been registered as Reference Case No.1 of 2009 and another one as Reference Case No.1 of 2010. Subsequently, by virtue of an order passed by Hon’ble the Supreme Court in VA Tech Escher Wyass Flovel Limited v. Madhya Pradesh State Electricity Board, (2011) 13 SCC 261 , the Tribunal has returned the petition for presentation before proper forum. However, it has refused to pass order refunding of Court fees vide order dated 20.5.2011. Subsequently, by another judgment dated 24.1.2012 passed in Madhya Pradesh Rural Road Development Authority v. L.G. Chaudhary Engineers and Contractors, (2012) 3 SCC 495 , the Hon’ble Supreme Court has held that the matter in respect of the dispute in manufacturing work would be amenable before the Madhyastham Adhikaran as such the Tribunal is having jurisdiction to entertain the reference under Section 7A of the Adhiniyam, 1983. In this situation, the Petitioner again went to

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the Tribunal and filed an application (Annexure P4) for restoration of earlier application which was returned by the Tribunal on the basis of earlier judgment of the Supreme Court. However, the Tribunal dismissed the said application stating that since the Petitioner has filed the application/petition before the High Court for refund of Court fees in which no prayer was made for restoration of the application for reference, as such this application cannot be allowed.

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4. Learned Counsel appearing for the State/Respondents submits that the order is in accordance with law and it does not require any interference.

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5. I have heard the arguments raised by Learned Counsel appearing for the parties and perused the material available with due care.

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6. Before deciding the issue, it would be appropriate to go through the relevant observations of the Supreme Court. In VA Tech (supra), the Supreme Court has observed thus:

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“3. Subsequently, Parliament enacted the 1996 Act. The 1996 Act only applies where there is an arbitration clause but it does not apply where there is none. The 1996 Act covers all kinds of disputes including the dispute relating to work contracts. In our opinion, the 1983 Act and the 1996 Act can be harmonised by holding that the 1983 Act only applies where there is no arbitration clause but it stands impliedly repealed by the 1996 Act where there is an arbitration clause. We hold

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accordingly. Hence, the impugned judgment cannot be sustained and we hold that the application under Section 9 of the 1996 Act was maintainable.”

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7. The Supreme Court in L.G. Chaudhary (supra) has held that its

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decision in VA Tech (supra) was rendered per incuriam and it has held as under:

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“26. It is clear, therefore, that in view of the aforesaid finding of a coordinate Bench of this Court on the distinct features of an Arbitral Tribunal under the said M.P. Act in Anshuman Shukla case (supra) the provisions of the M.P. Act are saved under Section 2(4) of AC Act, 1996. This Court while rendering the decision in VA Tech (supra) has not either noticed the previous decision of the coordinate Bench of this Court in Anshuman Shukla (supra) or the provisions of Section 2(4) of AC Act, 1996. Therefore, we are constrained to hold that the decision of this Court in VA Tech (supra) was rendered per incuriam .

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It is clear from the aforesaid observations that in instant case the latter Act made by the Parliament, i.e., the AC Act, 1996 clearly showed an intention to the effect that the State law of arbitration i.e. the M.P. Act should operate in the State of Madhya Pradesh in respect of certain specified types of arbitrations which are under the M.P. Act, 1983. This is clear from Sections 2(4) and 2(5) of AC Act, 1996. Therefore, there is no substance in the argument of repugnancy and is accordingly rejected.

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Therefore, the appeal is allowed and the judgment of the High Court which is based on the reasoning of VA Tech (supra) is set aside. This Court holds that the decision in VA Tech (supra) has been rendered in per incuriam. In that view of the matter the arbitration proceeding may proceed under the M.P. Act of 1983 and not under AC Act, 1996.”

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8. In the instant case, it is evident from the proceedings that the reference application has never been decided on merits by the

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Tribunal and only on the basis of judgment passed by the Supreme Court it has been held that the Arbitration Tribunal has no jurisdiction to entertain the reference after coming into force of the Arbitration and Conciliation Act, 1996 (henceforth ‘the Act, 1996’). Subsequently, by another judgment, the Supreme Court has held that reference application is maintainable before the Madhyastham Adhikaran as such it has never been adjudicated at any point of time before any Court of law. Therefore, in my view, since in a subsequent judgment the Hon’ble Supreme Court has directed to decide the matter and adjudicate the matter of manufacturing dispute before the Arbitration Tribunal as such the Arbitration Tribunal ought to have entertained the application and should have passed order on merits. At this juncture, when I went through the application, it seems that the applicant has not been properly drafted.

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9. Accordingly, the Petitioner is granted liberty to file a proper application and the Tribunal is directed to consider the application on the basis of order passed by the Supreme Court in L.G. Chaudhary (supra) keeping this fact that earlier the Petitioner has filed appropriate application before the Tribunal, but, due to order passed by the Supreme Court in the matter of VA Tech (supra) it has been taken back and the matter has not been adjudicated on merits, till date.

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10. Therefore, the matter is remanded back to the Arbitration Tribunal and the Petitioner is also granted liberty to file an appropriate application along with relevant documents so that the Arbitration Tribunal may effectively decide the application on merits.

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11. With the aforesaid directions, both the writ petitions are disposed of.

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Sd/-

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( Amitendra Kishore Prasad ) Judge

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Gopal Singh

M/s Manish Pipes Pvt.ltd. v. State Of Chhattisgarh And Anr.

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M/s Manish Pipes Pvt.ltd. v. State Of Chhattisgarh And Anr.

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