TaxTMI 
TaxTMI 
2019 (6) TMI 313
X X X X Extracts X X X X
X X X X Extracts X X X X
....red 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 Arbitration and Conciliation Act, 1996 (the Central Act) on the ground that the said Act is excluded by the Bihar Public Works Contracts Arbitration Tribunal Act, 2008 (Bihar Act 21 of 2008) (the State Act). (3) To appreciate the plea raised, it is necessary to refer to the scheme of the State Act as reflected in some of the key provisions. Sections 8, 9 and 22 of the State Act are as follows: "8. Act to be in addition to Arbitration & Conciliation Act, 1996.- Notwithstanding anything contained in this Act, and of the provisions Shall be in addition to and supplemental to Arbitration & 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. 9. Reference to Tribunal and making of award. - (1) Where any dispute arises between the parties to the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Clause 25 of the said Agreement is as follows:- "The arbitration shall be conducted in accordance with provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceeding under the clause." (5) The scheme of Sections 8, 9 and 22 of the State shows that in the absence of an agreement stipulating the applicability of the Central Act, the State Act applies to works contracts. Since in the present cases, an arbitration agreement exists and stipulates applicability of the Central Act, the State Act will not apply. We, thus, do not find any ground to interfere with the impugned order. (6) The appeals are dismissed. It will, however, be open to the appellant- State to move the High Court for change of Arbitrator, if a case to this effect is made out on an objection of neutrality, as submitted by learned counsel for the State." 3. It is in view of the aforesaid judgment rendered by the Hon'ble Apex Court in the case of M/S Brahmaputra Infrastructure Ltd. (supra), that the arbitral Tribunal has refused to adjudicate the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a decree of a civil court. The award of the Arbitral Tribunal is not subject to the provisions of the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996. The provisions of the said Acts have no application." 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 5 the said M.P. Act in Anshuman Shukla case5the provisions of the M.P. Act are saved under Section 2(4) of the AC Act, 1996. This Court while 1 rendering the decision in Va Tech1has not either noticed the previous decision of the coordinate Bench of this Court in Anshuman Shukla5 or the provisions of Section 2(4) of the AC Act, 1996. Therefore, we are constrained to hold that the decision of this Court in Va Tech1 was rendered per incuriam. 27. This was the only point argued before us by the learned counsel for the appellant. 28. The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd.6 Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered "per incuriam". The prin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct 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 the AC Act, 1996. Therefore, there is no substance in the argument of repugnancy and is accordingly rejected. 42. Therefore, the appeal is allowed and the judgment of the High Court which is based on the reasoning of Va Tech2is set aside. This Court holds that the decision in Va Tech1 has been rendered per incuriam. In that view of the matter the arbitration proceeding may proceed under the M.P. Act of 1983 and not under the AC Act, 1996. 53. In order to clarify the point further, what needs to be emphasised is that if the nature of dispute referred to the arbitrator like the instant matter, related to a dispute pertaining to construction, repair, maintenance of any building or superstructure, dam or for the reasons stated within the definition of "works contract", the matter may be referred to the M.P. Tribunal in view of the fact that if there is a dispute in relation to execution of a works contract, then irrespective of the fact whether the agreement contains an arbitration clause or not, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....983 should operate in the State of M.P. in respect of certain specified types of arbitration, the appointment of an independent arbitrator by the High Court under the Arbitration and Conciliation Act, 1996 needs to be sustained since the works contract itself is not in existence by virtue of its cancellation and hence this part of the dispute could not have been referred to the M.P. State Tribunal." 5. By referring to the aforesaid judgment rendered in the case of L.G. Chaudhary Engineers and Contractors(supra), the learned Senior Counsel has submitted that more or less similar provisions, as contained in Bihar Public Works Contracts Arbitration Tribunal Act, 2008 (hereinafter referred to as the "Bihar Act, 2008" also exist in the M.P. Madhyastham Adhikaran Adhiniyam, 1983 and the Hon'ble Supreme Court, by virtue of the aforesaid judgment rendered in the case of L.G. Chaudhary Engineers and Contractor(supra) has held that the State Government is competent to enact laws in relation to arbitration and the disputes can very well be referred to the State Arbitration Tribunal, if the disputes between the parties relate to any dispute emerging out of execution of works contract whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d under the M.P. Act of 1983 and not under the Arbitration and Conciliation Act, 1996". 10. Proceedings under the M.P. Madhyastham Adhikaran Adhiniyam, 1983 ( the State Act) were pending before the M.P. Arbitration Tribunal at Bhopal. The respondent raised an objection that in view of VA Tech Escher Wyass Flovel Ltd. v. M.P. SEB, the Arbitration and Conciliation Act, 1996 will apply and the State Act will not apply. This objection was rejected. The respondent preferred a writ petition. The High Court has upheld the objection and quashed the proceedings under the State Act. 11. The learned counsel for the State has drawn our attention to Section 2(4) of the Central Act, which ios as follows:- "2(4) This Part except sub-section (1) of Section 40, Sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except insofar as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder." 12. It was pointed out that the above provision was in pari materia with Secti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs.), [2014] 16 SCC 623 (Sundeep Kumar Bafna v. State of Maharashtra & Anr.) and the one reported in (2004) 1 SCC681 (Babu Parasu Kaikadi (dead) by LRS Vs. Babu (dead) through L.). 9. I have heard the learned counsel for the parties and I find that earlier also this Court had an occasion to deal with the issue under consideration and had set at rest the issue of maintainability of a request case by a judgment dated 17.10.2014 passed in Request Case No. 1 of 2014 (M/S Nilkamal Ltd. v. The State of Bihar & Ors.), paragraphs No. 25, 26, 27, 31, 39, 40 and 42 whereof are reproduced herein below:- "25. The second issue has been raised by learned counsel for the State that the present writ petition is not maintainable in view of the State Act petitioner should approach the Tribunal which has been created under the State Act. He has further submitted that there is non-obstante clause in section 22 of the State Act, the only re-course left to the petitioner, to approach the Tribunal and office has rightly raised the objection about the maintainability of the case. The counter for the petitioner disputed the objection of the office. 26. Part XI of the Constitution of India deals with d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n legislated by the Parliament whereas Bihar Public Works Contract Disputes Arbitration Tribunal Act, 2008 has been legislated by the State legislature. The Arbitration Act has been enacted following the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985 and the same was placed before the General Assembly of the United Nations recommended that all countries gave due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. On the recommendation of Law Commission of India and of several bodies, to deal with domestic as well as International Commercial Dispute, the Parliament enacted Arbitration Act, 1996 adopting UNCITRAL Model. This Arbitration Act is complete code which provides in a case of commercial dispute in what manner the arbitrator will be appointed for resolution of Commercial Dispute. This Central Act provides in case of agreement comprises clause for arbitration, in the event of dispute the parties to the dispute would place the demand for appointmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the State Act is supplemental and in case of repugnancy Central Act will prevail and as such the argument of the State that in view of Section 22 of the State Act to the extent of nature of work falls under the category of works contract excluded is very hard to be accepted. 30. Sections 9, 10, 11, 12 and 13 of the State Act provide, the establishment of the Tribunal, its practice and procedure. Section 11 of the Act deals with the power of Tribunal. Section 12 provides that Tribunal has power to review its award and revision lies to the High Court. Another important section is Section 22 of the State Act which is as follows: "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 of excluding any dispute from the purview of this Act." 31. Section 22 of the State Act starts with non- obstante clause and on that strengt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al under the State Act will be highly inappropriate against the terms of agreement. 42. In this view of the matter, the objection raised by the office about the maintainability of the petition is not sustainable and this Court will proceed with the matter in terms of the provisions of Central Act." 10. Thus, from a bare reading of the aforesaid judgment rendered in the case of Nilkamal Ltd. (supra), it is apparent that firstly in the present case pertaining to the State of Bihar, the Bihar Public Works Contract Dispute Arbitration Act, 2008 was not reserved for the asset of a President of India, hence, the same has not received the asset of the President of India, as provided for under Article 254 of the Constitution of India, secondly it is clear that in case of conflict between the State Act and the Central Act, Central Act would prevail in view of Section 8 of the Bihar Public Works Contract Dispute Arbitration Act, 2008, thirdly, only in cases where the agreement in between the parties is silent with regard to the arbitration being conducted in accordance with the provisions of Arbitration and Conciliation Act, 1996 or in case there is specific stipulation of resolution of t....