{"id":222687,"date":"2011-10-21T00:00:00","date_gmt":"2011-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-k-vs-gujarat-on-21-october-2011"},"modified":"2018-01-08T08:02:55","modified_gmt":"2018-01-08T02:32:55","slug":"g-k-vs-gujarat-on-21-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-k-vs-gujarat-on-21-october-2011","title":{"rendered":"G.K vs Gujarat on 21 October, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
G.K vs Gujarat on 21 October, 2011<\/div>\n
Author: M.R. Shah,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nIAAP\/11\/2006\t 8\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nPETN.\nUNDER ARBITRATION ACT No. 11 of 2006\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nG.K.\nPATEL & CO. - Petitioner(s)\n \n\nVersus\n \n\nGUJARAT\nSTATE ELECTRICITY CORPORATION LTD. & 1 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nHK PARMAR for\nPetitioner(s) : 1, \nNOTICE SERVED for Respondent(s) : 1, \nMS LILU\nK BHAYA for Respondent(s) :\n2, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/01\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent Arbitration Petition has been preferred by the
\npetitioner-contractor, under Section 11(6) of the Arbitration and
\nConciliation Act, 1996, for appointment of an Arbitrator for
\nreference and resolution of
\nthe disputes in connection with the work of Area Grading and
\nEarthwork within Ash Pond at Wanakbori Thermal Power Station.\n<\/p>\n
2.\tBefore
\nconsidering the submissions made on behalf of the rival parties, few
\nfacts are required to be considered for determination of the present
\nArbitration Petition, which are as under;\n<\/p>\n
2.1.\tEarlier
\nthe very petitioner-contractor approached this Court under Section 11
\nof the Arbitration and Conciliation Act, 1996 by way of Arbitration
\nPetition No. 11\/2003 and prayed to appoint sole Arbitrator for
\nadjudication of the disputes and\/or differences, rights and claims,
\nwhich are referred to in the notice dated 26\/11\/2002.  The aforesaid
\nArbitration Petition came up for hearing before the learned
\ndesignated Single Judge (Coram:-J.M. Panchal, J. [as he then was])
\nand by judgement and order dated 22\/08\/2003 the learned Single Judge
\ndismissed\/rejected the Arbitration Petition by specifically holding
\nthat the disputes, which are raised in respect of the work contract
\nentered into between the petitioner and the respondent are required
\nto be adjudicated by the tribunal under Section 8 of the Gujarat
\nPublic Works Contract Disputes Arbitration Act, 1992 (hereinafter
\nreferred to as  the Act, 1992 ).  Thereafter, the
\npetitioner-contractor accepted the said judgement and order and
\npreferred Arbitration Reference Application No. 27\/2003 and
\nthereafter the petitioner-contractor submitted an application below
\nExh. 21 dated 01\/11\/2004 in the aforesaid Arbitration Reference
\npermitting it to withdraw the said Arbitration Reference with a
\nliberty in its favour to approach this Court under Section 11 of the
\nArbitration and Conciliation
\nAct, 1996 for appointment of an Arbitrator as per the old Arbitration
\nClause contending interalia<\/p>\n
that the tribunal constituted under the aforesaid act would not have
\nany jurisdiction to entertain the nature of dispute between the
\npetitioner and the respondent in view of the definition of the ‘work
\ncontract’ under the Act 1992.  The learned tribunal as if sitting in
\nappellate Court, despite the order passed by the learned Single Judge
\n dated 22\/08\/2003 in Arbitration Petition No. 11\/2003 by which it was
\nspecifically held while rejecting the aforesaid Arbitration Petition
\nthat it is  the tribunal constituted under the aforesaid Act, 1992,
\nJurisdiction to resolve the dispute between the parties, allowed the
\napplication Exh. 21 permitting the petitioner to withdraw Arbitration
\nReference No. 27\/2003 with a liberty in favour of the petitioner to
\npresent the same before appropriate forum.  It appears that
\nthereafter the petitioner preferred the present Arbitration Petition
\nagain under Section 11 of the Arbitration and Conciliation Act, 1996
\nto appoint sole arbitrator for adjudication of the disputes and\/or
\ndifferences, rights and claims, which are referred to in the notice
\ndated 26\/11\/2002 for which the very petitioner had earlier preferred
\nArbitration Petition No. 11\/2003, which was rejected by the learned
\nSingle Judge vide order dated 22\/08\/2003.  Arbitration Petition No.
\n11\/2006 came to be allowed by the learned Single Judge vide judgement
\nand order dated 20\/07\/2006. However, subsequently, Miscellaneous
\nCivil Application No. 145\/2006 was preferred by the
\nrespondent-Gujarat State Electricity Corporation Ltd. to review the
\njudgement and order dated 20\/07\/2006 made in Arbitration Petition No.
\n11\/2006  and the said application came to be allowed by the learned
\nSingle Judge vide order dated   21\/09\/2006 and the judgement and
\norder
\ndated 20\/07\/2006 made in Arbitration Petition No. 11\/2006 (present
\npetition) came to be recalled and the same came to be restored to
\nfile and that is how the present Arbitration Petition is before this
\nCourt for appointment of sole Arbitrator for adjudication of the
\ndisputes and\/or differences, rights and claims, which are referred to
\nin the notice dated 26\/11\/2002 produced at Annexure   A to the
\nArbitration Petition.\n<\/p>\n
3.\tShri
\nS.N. Shelat, learned Senior advocate has appeared with Shri H.K.
\nParmar, learned advocate appearing on behalf of the petitioner.  It
\nis submitted that in view of the order passed by the learned tribunal
\ndated 05\/11\/2004 passed below Exh. 21 in Arbitration Reference No.
\n27\/2003 and the finding of the learned tribunal to the effect that
\nthe petitioner has chosen wrong forum  by approaching the tribunal by
\nway of Arbitration Reference,  the learned tribunal has permitted the
\npetitioner to withdraw the main Arbitration Reference with a liberty
\nto approach appropriate forum, and, therefore, it is requested to
\nallow the present Arbitration Petition by appointing sole Arbitrator
\nto resolve the disputes between the parties.  He has also further
\nsubmitted that as such the tribunal constituted under the Gujarat
\nPublic Works Contracts Dispute Arbitration Tribunal Act, 1992 would
\nnot have jurisdiction to resolve the dispute between the parties and,
\ntherefore, the present Arbitration Petition is the only remedy
\navailable to the petitioner for appointment of an Arbitrator.  It is
\nfurther submitted that one learned Single Judge earlier allowed the
\nArbitration Petition and in fact appointed the Arbitrator and,
\ntherefore, it is requested to appoint an Arbitrator.  Shri S.N.
\nShelat, learned Senior advocate appearing on behalf of the petitioner
\nhas further submitted that for the claims of the petitioner, as
\nreflected in the notice dated 26\/11\/2002,
\nthere is a dispute between the parties and, therefore, as per the
\nArbitration Agreement executed between the parties the dispute
\narising out of the claims made by the petitioner is required to be
\nreferred to the Arbitrator and for that purpose an Arbitrator is
\nrequired to be appointed.\n<\/p>\n
4.\tIt
\nis further submitted by Shri Shelat, learned Senior advocate
\nappearing on behalf of the petitioner that as both the parties had
\nagreed before the tribunal that the tribunal would not have
\njurisdiction to resolve the dispute between the parties and when both
\nthe parties have agreed before the tribunal that the matter is
\nrequired to referred to the Arbitrator, irrespective of any
\ntechnicalities, the dispute between the parties is required to be
\nreferred to the Arbitrator, and, therefore, the Arbitrator is
\nrequired to be appointed.  By making the above submissions, it is
\nrequested to allow the present Arbitration Petition.\n<\/p>\n
5.\tThe
\npresent Arbitration Petition is opposed by Ms. Lilu Bhaya, learned
\nadvocate   appearing on behalf of the respondents.  She has submitted
\nthat as such there was no consensus\/consent made by the respondents
\nbefore the tribunal to refer the dispute to the Arbitrator, as
\ncontended by the petitioner.  It is also further submitted that no
\nsuch consensus\/consent  was given by the respondents.  It is also
\nfurther submitted by Ms. Lilu Bhaya, learned advocate appearing on
\nbehalf of the respondents that the petitioner cannot rely upon the
\nearlier order passed by this Court in the present Arbitration
\nPetition as the said order is already recalled vide
\norder dated 21\/09\/2006 in Miscellaneous Civil Application No.
\n145\/2006 and, therefore, the said order is not in existence at all
\nand the petitioner cannot rely upon the order, which is not in
\nexistence.\n<\/p>\n
6.\tNumber
\nof submissions have been made by the learned advocates appearing on
\nbehalf of the respective parties on merits, inclusive of the
\nobjections by the respondents objecting to refer the matter to the
\nArbitrator, as according to the respondents, the claim of the
\npetitioner is absolutely time barred and\/or there is no dispute,
\nwhich is required to be referred to the Arbitrator.  However, in view
\nof the order passed hereinafter, as this Court is of the opinion that
\nthe present Arbitration Petition is not maintainable  in view of the
\norder passed by the learned Single Judge (Coram :- J.M. Panchal, J.
\n[as he then was]) in Arbitration Petition No. 11\/2003 rejecting the
\npetition for appointment of Arbitrator, this Court is not further
\nentering into the merits of the case and\/or considering the
\nobjections raised by the learned advocate appearing on behalf of the
\nrespondents with respect to the claim being time barred  and\/or other
\ndefences.\n<\/p>\n
7.\tHaving
\nheard the learned advocates appearing on behalf of the respective
\nparties and considering the entire record and proceedings of the case
\nand the facts narrated hereinabove, it cannot be disputed that
\nearlier the very petitioner had preferred Arbitration Petition No.
\n11\/2003 for appointment of an Arbitrator for adjudication of the
\ndisputes and\/or differences, rights and claims, which are referred to
\nin the notice dated 06\/11\/2002 (for which the present Arbitration
\nPetition has been preferred) and the learned Single Judge (Coram:-
\nJ.M. Panchal, J. [as he then was]) had vide order dated 22\/08\/2003
\nrejected the the said Arbitration Petition by holding that all the
\nquestions, disputes, differences, whatsoever, which may at any time
\narise between the parties to the contract in connection with the
\ncontract or any matter arising out of or in relation thereto, shall
\nbe referred to the Gujarat Public Works Contracts Disputes
\nArbitration Tribunal as per the provisions of the Gujarat Public
\nWorks Contract Disputes Arbitration Tribunal Act, 1992 and the
\nlearned Single Judge also held that any dispute between the
\npetitioner and the respondents, which has public undertaking, are
\nalso required to be adjudicated by the tribunal under Section 8 of
\nthe Act and in view of the provisions of Section 21 of the Act, the
\nArbitration Petition cannot be entertained and the relief claimed
\ncannot be granted.  The learned Single Judge also observed that the
\npetitioner is always at liberty to approach appropriate forum for
\nredressal of its grievance.  Accepting the aforesaid judgement and
\norder dated  22\/08\/2003 passed in Arbitration Petition No. 11\/2003,
\nin fact, the petitioner did approach the tribunal constituted under
\nSection 8 of the Act by way of Arbitration Reference No. 27\/2003.
\nHowever, after the aforesaid Arbitration Reference was filed, after a
\nperiod of almost more than one year, the petitioner submitted an
\napplication, Exh. 21 in the aforesaid Arbitration Reference
\npermitting it to withdraw the said Arbitration Reference by
\nsubmitting that the tribunal constituted under Section 8 of the Act
\nwould not have any jurisdiction to adjudicate the dispute between the
\nparties.  However, in view of the order passed by the learned Single
\nJudge dated 22\/08\/2003 in Arbitration Petition No. 11\/2003, without
\nchallenging the same, the petitioner ought not to have and\/or could
\nnot have submitted such an application, Exh. 21 permitting
\nit to withdraw the said Arbitration Reference by submitting that the
\ntribunal constituted under Section 8 of the Act would not have any
\njurisdiction to adjudicate the dispute between the parties.  Such a
\ncourse was highly impermissible and against the propriety.  Without
\nchallenging the order passed by the learned Single Judge dated
\n22\/08\/2003 in Arbitration Petition No. 11\/2003 by which the learned
\nSingled rejected the Arbitration Petition holding that for
\nadjudication of the disputes between the parties the tribunal
\nconstituted under Section 8 of the Act would have the jurisdiction,
\nit was not open for the petitioner to contend contrary before the
\ntribunal.  Not only the same, the tribunal as if was sitting in
\nappeal  against the order passed by the learned Single Judge allowed
\nthe said application, Exh. 21, permitting the petitioner to withdraw
\nthe Arbitration Reference by holding that for adjudication of the
\ndisputes between the parties, the tribunal constituted under Section
\n8 of the Act  would not have any jurisdiction.  By the aforesaid
\norder, virtually the tribunal, who is the subordinate Court, has
\nquashed and set aside the order passed the learned Single Judge dated
\n22\/08\/2003 in Arbitration Petition No. 11\/2003.  The tribunal, being
\nsubordinate to High Court could not have taken a contrary view than
\nthe view taken by the learned Single Judge in Arbitration Petition
\nNo. 11\/2003 and, therefore, the order passed by the learned tribunal
\nis absolutely without jurisdiction and against the judicial
\ndiscipline and propriety.  The proper course for the tribunal was to
\nreject the said application and relegate the petitioner to approach
\nthis Court by way of Review Application in Arbitration Petition No.
\n11\/2003 and\/or direct the petitioner to challenge the order passed by
\nthe learned Single Judge dated 22\/08\/2003 in Arbitration Petition No.
\n11\/2003.  Certainly, the tribunal could
\nnot have taken the contrary view to the view taken by the learned
\nSingle Judge, being subordinate tribunal\/Court.\n<\/p>\n
8.\tUnder
\nthe circumstances so long as the order passed by the learned Single
\nJudge dated 22\/08\/2003 in Arbitration Petition No. 11\/2003 stands and
\nis not modified and\/or set aside by the appropriate Court\/forum, this
\nCourt, being a  Court of Coordinate Bench, cannot take a contrary
\nview than the view taken by the learned Single Judge in Arbitration
\nPetition No. 11\/2003 dated 22\/08\/2003 by which the learned Single
\nJudge rejected the said Arbitration Petition submitted by the very
\npetitioner, which was submitted for referring the dispute to the
\nArbitrator for adjudicating and deciding the very dispute for which
\nthe present Arbitration Petition has been preferred.  As stated
\nhereinabove, the learned Single Judge while rejecting the Arbitration
\nPetition, being Arbitration Petition No. 11\/2003, has specifically
\nheld that the dispute is required to be adjudicated by the tribunal
\nconstituted under the provisions of the aforesaid Act, and,
\ntherefore, unless and until the said order is either recalled and\/or
\nmodified by this Court and\/or set aside by the higher forum, no
\nrelief can be granted to the petitioner in the present proceedings
\nfor the very relief, which was rejected by this Court vide order
\ndated 22\/08\/2003 in Arbitration Petition No. 11\/2003.\n<\/p>\n
9.\tSo
\nfar as the contention on behalf of Shri Shelat, learned Senior
\nadvocate appearing on behalf of the petitioner that even the other
\nside consented before the tribunal that the tribunal has no
\njurisdiction and the matter is required to be referred to the
\nArbitrator is concerned, the same is the disputed by the learned
\nadvocate appearing on behalf of the respondents.\n<\/p>\n
10.\tBe
\nthat as it may.   Even assuming that such consensus\/consent was given
\nby the learned advocate appearing on behalf of the respondent before
\nthe tribunal, in that case also, by consent of the parties, the order
\npassed by the learned Single Judge dated 22\/08\/2003 in Arbitration
\nPetition No. 11\/2003 cannot be set at knot and the parties by consent
\ncannot be permitted to withdraw the proceedings to approach this
\nCourt.  As stated hereinabove, if the parties were\/are of the opinion
\nthat the tribunal has no jurisdiction to adjudicate  the dispute
\nbetween the parties, in that case, either of the parties could have
\ninitiated appropriate proceedings either to recall and\/or modify the
\norder dated 22\/08\/2003 passed in Arbitration Petition No. 11\/2003
\nand\/or they could have challenged the order passed by the learned
\nSingle Judge  in Arbitration Petition No. 11\/2003.  However, by
\nmutual consent they cannot be permitted to set aside the order passed
\nby the learned Single Judge in Arbitration Petition No. 11\/2003.  The
\nthings, which are required to be done in proper and particular
\nmanner, are to be done only in such a manner  after following
\nnecessary procedure as required under the law.  By consent, the
\nparties cannot be permitted to do certain things, which is not
\npermissible under law without following the due procedure.\n<\/p>\n
11.\tNow
\nso far as reliance placed upon the earlier order passed by the
\nlearned Single Judge dated 20\/07\/2006 in the present Arbitration
\nPetition for appointing the sole Arbitrator is concerned, it is to be
\nnoted that after the said order was passed, Miscellaneous Civil
\nApplication No. 145\/2006 in Arbitration Petition No. 11\/2006 was
\npreferred by the respondents and by order dated 21\/09\/2006 the order
\ndated 20\/07\/2006 has been recalled and Arbitration Petition No.
\n11\/2006 is restored to file, meaning thereby, the order dated
\n20\/07\/2006 is not in existence at all.  Under the circumstances, the
\nlearned Senior advocate appearing on behalf of the petitioner cannot
\nrely upon the order dated 20\/07\/2006, which is not in existence.\n<\/p>\n
12.\tIn
\nview of the above and for the reasons stated hereinabove, more
\nparticularly, the order passed by the learned Single Judge dated
\n22\/08\/2003 in Arbitration Petition No. 11\/2003, no relief can be
\ngranted to the petitioner, more particularly, so long as the order
\npassed by the learned Single Judge dated 22\/08\/2003 in Arbitration
\nPetition No. 11\/2003 stands and\/or it is not recalled and\/or modified
\nby this Court and\/or set aside by higher forum.   In view of the
\nabove, the present Arbitration Petition is required to be dismissed
\nand is accordingly dismissed.\n<\/p>\n
\t\t\t\t\t\t\t(M.R.\n<\/p>\n
SHAH, J.)<\/p>\n
siji<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court G.K vs Gujarat on 21 October, 2011 Author: M.R. Shah, Gujarat High Court Case Information System Print IAAP\/11\/2006 8\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD PETN. UNDER ARBITRATION ACT No. 11 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-222687","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nG.K vs Gujarat on 21 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-k-vs-gujarat-on-21-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.K vs Gujarat on 21 October, 2011 - 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